Lakin lawyer says judge applied 'incorrect standard' in dismissing class action

Steve Korris Sep. 5, 2008, 4:00am

U.S. District Judge Phil Gilbert's decision to dismiss a chiropractor's class action against Travelers Insurance means nothing in a chiropractor's class action against Travelers in Madison County, according to Jeff Millar of the Lakin Law Firm.

Gilbert "applied the incorrect standard for whether allegations of an unfair practice claim states a cause of action," Millar wrote to Circuit Judge Daniel Stack on Aug. 19.

Gilbert ignored Seventh Circuit opinions applying Illinois contract law when he ruled that courts can't count two contracts as one, Millar wrote.

Millar wrote that Illinois law requires only that agreements incorporate each other.

"Here, the provider agreement cannot exist without the payor agreement and vice versa," Millar wrote.

"By their very terms, the agreements are connected to each other," he wrote.

Millar advised Stack to copy Circuit Judge Barbara Crowder, who in June certified a chiropractor's class action against Liberty Mutual.

The Lakins sued Travelers in 2005 on behalf of local chiropractors Richard Coy and Frank Bemis.

They claim Travelers improperly reduces payouts for treatment of injuries from accidents.

Stack held a class certification hearing in April and hasn't reached a decision.

In a nearly identical suit at federal court, Gilbert ruled in July that under Illinois law he could not let chiropractor Kathleen Roche construe two contracts as one.

He didn't dismiss the suit entirely, leaving only a claim for unjust enrichment.

Though he set no precedent for state judges, he laid out the insurer's case so well that Travelers sent Stack a copy as supplemental authority on class certification.

Millar countered that, "First, the Roche order has nothing to do with class certification."

Gilbert did not have before him the arguments, authorities, discovery, third party discovery, depositions and record of this case, Millar wrote.

He argued that while Roche based her consumer fraud claim solely on unfair practices, Coy and Bemis based theirs on deceptive conduct, omission and unfair practices.

Bradley Lakin and Robert Schmieder II of the Lakin firm and Timothy Campbell of Godfrey placed their names below Millar's signature as attorneys for the proposed class.

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Hartford, CT 06183

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