Chiropractor plans to appeal class certification reversal, brief says

Steve Korris Jun. 10, 2011, 1:33am


Chiropractor Frank Bemis intends to seek Illinois Supreme Court review of a decision that stopped his class action against Travelers Casualty, according to Robert Schmieder of LakinChapman.

On May 27, he wrote that Bemis would appeal a decision of the Fifth District in Mount Vernon, reversing a class certification order of former Madison County Circuit Judge Daniel Stack.

Fifth District judges ruled in March that Bemis failed to state an actionable claim against Travelers.

Schmieder announced his plan to seek Supreme Court review to Circuit Judge William Mudge, in a brief for a separate class action Bemis leads against Employers Mutual.

Employers Mutual, reading the Travelers decision as a means to escape the class action, moved in April to decertify it.

Employers Mutual argued that in each case, Bemis claimed an insurer failed to steer patients to him in exchange for "preferred provider organization" discounts it took on workers compensation bills.

In response, Schmieder highlighted a difference between the cases.

He wrote that in Travelers, the Fifth District relied on language in a payor agreement between the preferred provider network and the insurer.

"Employers has not got a payor agreement, and therefore had no right to take PPO discounts," Schmieder wrote.

"Employers has now concocted arguments to try to take advantage of the Travelers decision even though the arguments make no sense based on the actual facts of this case," he wrote.

He wrote that in Travelers, there was no dispute that the insurer had a payor agreement with third party claim reviewers.

"Here, in contrast, that issue is hotly disputed," he wrote.

"Travelers did not turn on the absence of a direct contract between plaintiffs and the insurer, but rather assumed for the sake of argument that the plaintiffs in that case could enforce the payor agreement as third party beneficiaries," he wrote.

"Moreover, despite the lack of a direct contract between plaintiffs and Employers, plaintiffs may be able to establish standing to pursue a contract claim based on theories of interlocking contracts, agency, third party beneficiary status, or joint venture," he wrote.

Then he suggested Mudge shouldn't lean on a decision Bemis plans to challenge.

"It is possible that the appeal may yield additional guidance on the financial incentive and steerage issues, assuming a payor agreement exists in this case," he wrote.

Schmieder's colleague Jonathan Piper worked on the brief, along with Timothy Campbell, of Campbell and McGrady in Godfrey.

Thomas Pender and April Connley of Chicago represent Employers Mutual.

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