Crowder lost jurisdiction when certifying Lakin class action, Safeco attorney says

Steve Korris Jun. 4, 2009, 1:14pm

EAST ST. LOUIS – When Madison County Circuit Judge Barbara Crowder certified a LakinChapman class action against insurer Safeco she expanded it so greatly that she surrendered jurisdiction, according to Safeco lawyer Mark Arnold of St. Louis.

Arnold removed the suit to federal court in East St. Louis in April, claiming Crowder started a new case for purposes of federal class action law.

Crowder's March 25 certification order turned a suit against two Safeco affiliates into a suit against 11 affiliates, he wrote.

"The record shows that this was a purposeful expansion of the case," Arnold wrote.

He asked District Judge Patrick Murphy to reconsider Crowder's order.

"Bill review cases like this are unsuited for class adjudication," he wrote.

"As courts across the country have repeatedly held, a carrier's liability to a first party claimant or medical provider for unpaid medical expenses under a property or casualty can be tried only on a case by case basis, by examining the facts of each class member's claim," he wrote.

He wrote that Crowder's trial plan would award damages without proof of liability and would postpone liability determination until after trial.

"On this ground alone, the certification order should be vacated," he wrote.

LakinChapman lawyer Jonathan Piper, representing chiropractor Frank Bemis, moved in May to remand the case to Crowder.

Bemis alleges breach of contract, claiming he billed for two treatments at $75 each and received $65.95 each time due to biased software.

Lakin lawyers barely kept the case out of federal court in the first place.

They filed it just ahead of the effective date of the Class Action Fairness Act, in 2005.

The act steered most new class actions to federal court.

Courts have defined old actions as new ones under the act when big changes occur.

In an early test of the act, federal appeals judges ruled that a state court order certifying a class action against Liberty Mutual started a new suit and triggered removal.

Arnold seeks to apply the Liberty Mutual precedent to Crowder's order.

The complaint sought damages from Safeco Insurance Company of America and Safeco Insurance Company of Illinois.

Crowder certified a class action against "all Safeco property and casualty insurance companies" that used the software at issue.

According to Arnold, that added nine defendants.

Crowder started the class period in 1997.

She included 14 states from New Hampshire to New Mexico.

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