Crowder allows Lakin to amend chiropractor's class action

Steve Korris Mar. 7, 2007, 2:52pm

Judge Crowder

Dennis Barton

Madison County Circuit Judge Barbara Crowder gave the Lakin Law Firm 28 days to repair a proposed class action against Safeco Insurance.

Crowder dismissed a breach of contract complaint of chiropractor Frank Bemis on March 2, but she granted the Lakin firm leave to amend the complaint.

Bemis sued in 2005, claiming Safeco did not fully pay bills for treating victims of auto accidents that Safeco policies covered.

At a hearing in December, Safeco attorneys told Crowder that Bemis could not claim breach of contract because he had no contract with Safeco.

Dennis Barton of the Lakin firm argued that Bemis's patient assigned to Bemis his contract rights.

Crowder wrote in her order that no assignment was attached to the complaint.

"Plaintiff produced an assignment during the course of the arguments but did not seek leave to file it as an exhibit to the complaint or to amend the complaint to include its relevant provisions," she wrote.

"The allegations in the county sufficiently state a claim under which relief could be granted for breach of contract except for the lack of the assignment or its language," she wrote.

Crowder denied Safeco motions to dismiss counts of consumer fraud and unjust enrichment.

She also rejected Safeco's argument that two other suits from 2003 were pending before other Madison County judges for the same cause.

She wrote that those plaintiffs named more defendants than Bemis named.

"Since the plaintiffs differ and the defendants differ, the motion to dismiss is denied," she wrote.

She denied a motion of the Lakin firm to consolidate the Bemis case into one of the others.

"It will not makle the already existing case more convenient to handle by consolidating a file by a different plaintiff with fewer than all of the defendants named in the 03 file with it and adding more pleadings to an existing case," she wrote.

"Nothing prevents plaintiff from voluntarily dismissing this action and attempting to be added to the existing file; the Court will not consolidate this file into the other case," she wrote.

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