Moran throws out another class action

By Steve Korris | Nov 10, 2005

Circuit Judge George Moran

Bradley Lakin

Madison County Circuit Judge George Moran has thrown out a proposed class action suit that chiropractor Frank Bemis filed in February against Cincinnati Insurance.

Cincinnati had argued that Bemis tried to fit a square peg in a round hole, and Moran agreed.

Thirty-six days after a motion to dismiss hearing was held, Moran based his Nov. 2 decision on a defense memorandum that quoted the old "peg" expression.

Represented by the Lakin Law Firm in Wood River, Bemis sued in February, claiming that Cincinnati improperly reduced payment for his treatment of a patient, Mr. Stanley, under a workers' compensation policy.

His attorneys alleged consumer fraud, civil conspiracy and unjust enrichment. They moved to certify Bemis as representative of plaintiffs in 31 states.

Madison County Circuit Judge Daniel Stack designated Brad Lakin and Jeffrey Millar of the Lakin firm as lead counsels for the proposed class.

Cincinnati moved in March to dismiss.

Lakin and Millar, opposing the motion, wrote that Bemis signed a contract with a company, Corvel, to steer patients to him in exchange for discounted rates.

They wrote that Corvel and Cincinnati signed a contract under which Cincinnati could pay discounted rates in return for steering patients to Bemis.

Lakin and Millar claimed that Cincinnati took the discounts but did not steer the patients.

Cincinnati Insurance attorney George Smyrinotis of Chicago, replying in a May 9 memorandum, argued that Bemis had no contract with Cincinnati.

“Simply stated, Cincinnati does not have any obligations to Bemis to pay him any amount whatsoever for any chiropractic treatment,” he wrote.

He argued that jurisdiction belonged with the Illinois Industrial Commission.

“The only dispute is about the amount of benefits properly payable,” he wrote. “This is exactly the type of dispute that the commission is exclusively set up to resolve.”

He wrote that the attempt to style the suit as a class action was irrelevant and failed to relieve the commission of jurisdiction.

Smyrinotis also attacked Bemis’s consumer fraud claim.

“Bemis does not allege that Cincinnati deceived him into treating Stanley,” he wrote. “Bemis does not allege that Cincinnati represented to him that it would pay any part of Stanley’s medical bills.”

“At most, Bemis suggests a difference of opinion about the value of the treatment rendered Stanley," he wrote. "Differences of opinion are not considered deceptive under Illinois law.”

He argued that Bemis could not claim consumer fraud because he was not a consumer.

Smyrinotis also attacked the conspiracy claim, which alleged that Corvel wrongfully transferred commercial information about Bemis to Cincinnati.

“This is not wrongful conduct,” he wrote. “Rather, it is exactly what Bemis contracted for with Corvel.”

Finally, Smyrinotis attacked the unjust enrichment claim. He wrote that Bemis did not allege that any contract or policy bound Cincinnati to pay any amount.

“Because Cincinnati did not owe Bemis any payment,” he wrote, “Cincinnati cannot be deemed to have wrongfully retained any amount purportedly due Bemis.”

On May 20, Bemis moved for a substitute judge. Stack granted the motion, and Chief Judge Edward Ferguson assigned the case to Moran.

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