Class action chiropractor turns down settlement offer as lawyers would not get fee

Steve Korris Feb. 4, 2010, 1:32am

Local chiropractor Frank Bemis turned down $48 to settle a class action billing dispute, because his lawyers at LakinChapman wouldn't collect a fee.

Andrew Kuhlmann of LakinChapman wrote on Jan. 20 that the offer didn't account for the relief Bemis requested from Employers Mutual Casualty.

Bemis alleges that Employers Mutual took discounts from bills of members of preferred provider organizations but broke a promise to steer patients to them.

"In addition to reimbursement of all PPO reductions, plaintiff requests an award of attorney's fees under the Illinois Consumer Fraud Act," Kuhlmann wrote.

"At a minimum, then, attorneys' fees remain outstanding, and plaintiff's claims are not moot," he wrote.

"Because plaintiff seeks relief beyond the alleged tender, there is no need to even analyze whether the tender could prevent class certification," he wrote.

His brief buttressed an earlier motion to certify a class of health care providers who received less than they billed for workers compensation cases.

Bemis sued in 2005, days before the national class action fairness act took effect.

He claimed breach of contract, though his lawyers still haven't found a contract.

"If there is a contractual relationship between Employers and the class members, then the common, predominating question is whether Employers had an obligation to provide financial incentives in exchange for taking the PPO discounts," Kuhlmann wrote.

"If, on the other hand, there is no contractual relationship, then the common, predominating issue is whether Employers committed fraud and/or was unjustly enriched by its uniform conduct of taking PPO discounts when it had no contractual right," he wrote.

Class certification remains pending.

Employers Mutual hopes to avoid a class action in any event, for it filed a third party suit against bill review company Fair Isaac.

Employers Mutual and Fair Isaac don't agree on potential liability, but they agree in opposition to class certification.

They would apply an Illinois Supreme Court decision from 2005, Avery v. State Farm, that restricted class actions.

According to Kuhlmann, the Court reversed class certification in Avery due to material differences in policies.

"Here, there are no material differences among the relevant provider agreements," he wrote.

"All of the provider agreements contain the express term 'PPO' and/or 'preferred provider,'" he wrote.

"There simply is no need to review each provider's agreement," he wrote.

"Individual fact finding will not be necessary," he wrote.

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