American Family appeals Stack's dead plaintiff substitution

Steve Korris Apr. 23, 2009, 8:18am


American Family Mutual Insurance wants Madison County Circuit Judge Daniel Stack to admit he might have made a mistake in appointing substitute plaintiffs for a class action five years after the death of the original plaintiff.

On April 9 Timothy Sansone of St. Louis asked Stack to seek appellate review of a Feb. 3 order preserving a Lakin Law Firm class action he certified in 2002.

"Respectfully, the lack of any class representative for so long is not something that can be ignored, called irrelevant, or set aside as unimportant," Sansone wrote.

"Here, absent class members in this case have never received any notice, and any attempt now, through the newly appointed chiropractic class representatives, will not resolve the constitutional due process defects present and will only further confuse the situation," he wrote.

The suit alleges that American Family improperly reduced payments for treatment of injuries from car crashes.

The class representative Stack certified, Manuel Hernandez, died in 2004.

For two years no one told Stack, who held hearings and signed orders in the case.

American Family reported Hernandez's death to Stack in 2006.

The insurer has pressed Stack to find out whether Lakin lawyers concealed his death or didn't know he died, but Stack has not shared their curiosity.

At first the Lakins offered widow Nora Hernandez as a substitute, but Stack ruled that she couldn't represent the class because she didn't belong to it.

The Lakins then chose Matthew Chenault of Greenville, Anthony Wolf of Indianapolis, their chiropractic clinics, and the Kruse and Manley clinic of Sioux City, Iowa.

Chenault claimed the insurer reduced a payment from $60 to $56, Wolf claimed a reduction from $40 to $36, and the Iowa clinic claimed a reduction from $55 to $54.

American Family pleaded that the case died when Hernandez died, but Stack disagreed.

Sansone then set to work crafting three questions for Fifth District appellate judges.

The first asks if due process prevents a case from proceeding where class counsel failed to notify the court of the death of the sole class representative.

The second asks whether a judge can substitute class representatives when absent class members have never received notice.

The third asks whether chiropractors fit a class definition of persons injured in auto accidents by claiming assignment of rights.

Sansone wrote to Stack that the record is ambiguous on whether the substitutes hold valid assignments under Illinois law.

Andrew Kuhlmann, of the firm now called LakinChapman, answered on April 17 that an appeal would delay the litigation.

"Plaintiffs are ready to present a notice plan for court approval which will ensure that the due process rights of all involved are preserved," he wrote.

On the same date Sansone answered the complaint of the substitutes with a challenge to their standing.

He wrote that American Family didn't insure any of them.

The class includes 11 states and the class period started in 1990.

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