Subs for dead plaintiff in American Family class action fade away

Steve Korris Sep. 11, 2008, 5:17am

Jeff Millar

In a Lakin Law Firm class action with a dead client suing American Family Insurance, three live replacements faded into Madison County mist this summer.

Body Dynamics Chiropractic Center, Henderson Chiropractic and Trinity Health Center abandoned their brief role in a suit the late Manuel Hernandez filed in 2000.

Jeff Millar of the Lakin firm, who had picked them as substitute class representatives, omitted their names from a July 23 list of "applicable representatives."

Three chiropractors continue as potential substitutes for Hernandez, who claimed American Family improperly reduced payouts on medical bills of accident victims.

Circuit Judge Daniel Stack certified Hernandez as class representative in 2002 and set 1990 as the start of the class period.

The class included Arizona, Idaho, Illinois, Indiana, Iowa, Missouri, Nebraska, Nevada, Ohio, South Dakota and Wisconsin.

Hernandez died in 2004, but Stack didn't find out until 2006.

The news reached him not through the Lakins but through American Family, in 2006.

Millar moved to substitute widow Nora Hernandez, but Stack ruled last year that she didn't belong to the class.

Millar bounced back with a plan to substitute six chiropractic clinics and five of the chiropractors running the clinics.

For the new group, he filed a sixth amended complaint.

For American Family, Anthony Martin of Sandberg, Phoenix and von Gontard in St. Louis answered on Aug. 25 with a motion to dismiss.

He argued that Lakin's chiropractors lack standing to sue American Family.

They haven't even called a hearing on their substitution motion, Martin wrote.

In case he doesn't prevail on standing, he found all sorts of fault with the complaint.

"The exact nature of these claims is confusing," Martin began.

"The movants do not allege, nor could they show, the existence of a contract between them and American Family," he wrote.

"None of the movants can demonstrate they ever received a valid written assignment from an American Family insured," he wrote.

"Accordingly, they are not members of the class defined by the court," he wrote.

Plaintiffs can't show injury, damages or deception, he wrote.

"The movants cannot show a breach of contract or fraud merely by alleging that American Family used computer software to review medical bills," he wrote.

They can't invoke consumer law because they aren't customers, he wrote.

Millar faces a Sept. 30 deadline to counter American Family's motion to dismiss.

Stack has set a hearing Nov. 5 on Millar's substitution motion.

The motion would certify East Washington Chiropractic, Anthony Wolf, Greenville Rehab and Pain Clinic, Matthew Chenault, and Kruse and Manley Clinic of Chiropractic as class representatives.

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