Death isn't only reason for dismissing class action, lawyer argues

Steve Korris Jan. 25, 2007, 2:03am

Judge Daniel Stack

Lakin Law Firm attorneys violated an Illinois Supreme Court rule by failing to disclose the death of the only class representative in a Madison County class action, according to American Family Insurance.

American Family attorney Anthony Martin of St. Louis moved Jan. 19 to dismiss a suit that Nora Hernandez took over last year from late husband Manuel Hernandez.

Martin wrote to Circuit Judge Daniel Stack that under Supreme Court Rule 219, discovery obligations continued regardless of the death of the plaintiff.

Manuel Hernandez set a record for posthumous litigation by dying in January 2004 and carrying a Lakin lawsuit through to 2006.

He sued in 2000, claiming the insurer improperly reduced payouts on medical bills from accidents. Stack certified him in 2002 to lead a class action.

American Family detected his death last year and broke the news to Stack.

Stack allowed Nora Hernandez to pursue the suit as personal representative of Manuel Hernandez. Stack has not ruled on her adequacy as class representative.

If Stack grants Martin's Rule 219 motion, adequacy will not matter.

In the motion Martin argued that the Lakin firm violated a duty under Rules 213 and 214 to supplement discovery responses seasonably.

He wrote, "Class counsel's failure to disclose the death of the sole class representative to this Court and to opposing counsel for over two years (for whatever reason) supports this dismissal."

In case the Rule 219 motion should fail, Martin moved the same day to dismiss on more conventional grounds.

He argued that Nora Hernandez does not belong to the class Stack defined, which included all who were paid or tendered an amount less than the policy limits.

He wrote that she suffered injuries in the same car crash as her husband. He wrote that she exhausted the $5,000 policy limit.

"Therefore, she sustained no damages," he wrote.

He argued that she could not carry Manuel Hernandez's claim either.

He wrote that chiropractor Charles King submitted $4,250 in bills for treating Manuel Hernandez. He wrote that American Family paid King $3,452.38.

He wrote that neither Hernandez nor King contested the payment or notified the insurer that they were dissatisfied.

He wrote that Hernandez did not pay the difference and King did not claim it.

He wrote, "…his estate satisfied all of its obligations, none of which was the payment of any sum to Dr. King…"

Martin argued that the class action died when Hernandez died because the Lakin firm never sent notice to class members.

"The failure to provide notice to the class is itself a sufficient ground for dismissal of this action," Martin wrote.

He argued that the complaint of Nora Hernandez was not timely.

He wrote, "…class counsel either knew of Mr. Hernandez's death for over two years and failed to act, or failed to attempt contact with the sole class representative for over two years."

Martin argued that the complaint changed Stack's definition of the class. He wrote that Stack included 12 states but the complaint dropped Iowa.

He wrote that Stack certified claims for breach of contract but the complaint asserted claims of statutory fraud.

"Plaintiff must file a separate motion to request such changes…," he wrote.

Martin argued that under the Illinois Supreme Court's 2005 decision in Avery v. State Farm, plaintiffs could not assert a multi-state claim.

Finally he argued that the complaint fell below standards of plain and concise pleading. He called it cumbersome, confusing, unwieldy and inconsistent.
Stack set a hearing Feb. 28.

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