LakinChapman seeks to amend 11-year-old 'dead plaintiff' class action

Steve Korris Sep. 22, 2011, 1:21am

LakinChapman lawyers who carried on a Madison County class action against American Family Insurance with a dead client for three years find a substitute suffers a more serious deficiency.

Jonathan Piper of LakinChapman moved for leave to amend the complaint on Sept. 9, after American Family alleged that class representative Mark Kruse leads a conflicting class action in Iowa.

In the Madison County action, Kruse and other substitutes for the late Manuel Hernandez claim American Family improperly reduced payments on medical bills from car crashes.

According to American Family, the interests of the class in the Iowa action conflict with the interests of the class in Madison County.

American Family reported Kruse's role in Iowa to Madison County Circuit Judge Bill Mudge on Aug. 16, in a supplement to a motion to decertify the class.

Rather than oppose the motion, Piper proposed a new complaint.

He didn't mention Kruse, but the notes he hit sounded like retreat.

"Plaintiffs seek leave to amend their complaint to narrow the class claims to reductions taken pursuant to Mitchell Medical software reductions based on charges exceeding the usual and customary amount for the geographical region," he wrote.

"The amended complaint also contains an alternative request for certification of particular issues," he wrote.

"The amended complaint will help to focus the issues with respect to certification and before notice to the class is issued," he wrote.

"There is no prejudice or surprise to defendant by making changes for clarification and proper procedure," he wrote.

Brad Lakin and Robert Schmieder worked on the brief.

Hernandez sued American Family in 2000.

Retired circuit judge Daniel Stack certified a class action as associate judge in 2002, on claims from 11 states back to 1990.

Hernandez died in 2004, but no one told Stack.

He kept holding hearings and signing orders.

In 2006, American Family notified him that Hernandez died.

The insurer pleaded that the case died with him, but Stack allowed substitutions in 2007.

This June, American Family filed a decertification motion under seal.

In its Aug. 16 supplement, Anthony Martin of St. Louis wrote that class counsel should have disclosed the Iowa action at least three years ago.

He wrote that the Iowa action was replete with accusations against doctors Kruse represents in the Madison County action.

He wrote that Kruse has a conflict with at least 95 percent of medical doctors and doctors of osteopathy in Iowa.

He wrote that the case awaited oral argument at the Iowa Supreme Court.

Mudge set an Oct. 14 hearing on Piper's motion.

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