Pending motions in class with dead plaintiff to be heard Oct. 18

Steve Korris Oct. 12, 2007, 7:54am

Richard Burke

Lakin Law Firm attorneys can't find a living class substitute for a dead class representative in a Madison County class action, but former Lakin lawyer Richard Burke boasts two in two weeks.

Burke on Oct. 1 asked Circuit Judge Daniel Stack to substitute Belleville chiropractor Dawn Robinson for the late Manuel Hernandez in a suit against American Family Insurance.

A week earlier Burke offered Ohio resident Helen Nemeth as substitute.

Burke may have sensed that Nemeth wouldn't fly as class representative, for last year the Lakins offered her and quickly withdrew her.

In a separate brief Burke rubbed salt in Lakin wounds.

Responding to a Lakin motion to stay the Nemeth substitution, he pointed out that the Lakins filed it on behalf of Nora Hernandez, Manuel's widow.

He reminded Stack that in July he denied a motion to substitute Nora Hernandez as class representative.

"Nora Hernandez is not a party to the litigation and is without any standing to request a stay, or to file any other pleading with the court," Burke wrote.

Manuel Hernandez sued American Family Insurance in 2000, claiming it underpaid medical bills of those who suffered injuries in car crashes.

Stack certified him as class representative in 2002.

The Lakins did not propose a class notice for Stack's approval.

Hernandez died in 2004, but no one told Stack. He held hearings and signed orders for Hernandez.

In 2005 Stack decided that 11 states belonged to the class.

In 2006 American Family Insurance filed a "suggestion of death."

The Lakins filed a similar notice but did not explain how Hernandez's death escaped the court's attention for two years.

The Lakins have tried ever since to find a substitute, without success.

In July Stack gave the Lakins 60 days to replace Hernandez.

In September the Lakins complained to Stack that American Family Insurance would not provide records identifying possible plaintiffs.

American Family Insurance attorneys told Stack it wasn't their job to help the Lakins hunt for plaintiffs.

Burke then jumped in, first with Nemeth and now with Robinson.

"Dr. Robinson submitted a bill for her fair, usual, customary and reasonable services to AFI," Burke wrote.

He wrote that American Family Insurance reduced the payment, "without any determination that the amount billed was not fair, usual, customary, or reasonable."

He called Nemeth and Robinson indispensable. He wrote that if Stack does not approve them, the claims of the class are subject to dismissal.

American Family Insurance favors immediate dismissal, arguing that due to lack of notice the class died when Hernandez died.

Stack plans an Oct. 18 hearing on all pending motions.

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