GEICO passes 'Avery' test, dismissal marks end of era

By Steve Korris | Jul 12, 2006

Circuit Judge Nicholas Byron As class action plaintiffs, Myron Billups and Patricia Singleton lasted five years at the Madison County courthouse. As regular citizens they did not last a month.

Circuit Judge Nicholas Byron

Brad Lakin

Shelia Carmody

As class action plaintiffs, Myron Billups and Patricia Singleton lasted five years at the Madison County courthouse. As regular citizens they did not last a month.

Circuit Judge Nicholas Byron signed an order July 7, dismissing all their fraud claims against insurer GEICO.

Byron decertified them as class action plaintiffs June 8, in reluctant compliance with the Illinois Supreme Court decision in Avery v. State Farm.

The Avery decision reversed a $1.2 billion verdict from Williamson County and knocked the props out from under class action litigation in Illinois.

Byron, at a June 8 hearing, said he followed the Supreme Court whether he agreed with them or not.

He told plaintiff attorney Bradley Lakin, "I think you owe it to the consumer to take an appeal on it, to get better clarification of these issues."

Lakin instead settled with GEICO.

The end of the GEICO suit means the end of an era because Byron chose it for the first test of the Avery decision in Madison County.

At a hearing last September Byron brought up Avery "sua sponte" – on his own – and gave GEICO 30 days to move for decertification.

Attorneys in other cases moved for decertification under Avery, but most of them delayed briefs and hearings while waiting for Byron to hear GEICO's motion.

All along the case has provided a perfect example of class action philosophy. It meant more to plaintiff's attorneys than it meant to the plaintiffs.

The Lakin firm sued in 2001, claiming GEICO cheated Billups on a claim from a 1999 crash that wrecked his 1988 Pontiac Grand Am.

Jeffrey Millar signed the complaint, which carried the name of two other Lakin attorneys, six from Chicago and two from Marion.

Billups did not attach his policy to the complaint, so GEICO moved to dismiss. Millar submitted a specimen policy, and Byron accepted it.

Defense attorneys wrote that GEICO offered Billups $2,143 for the car, plus sales tax, minus a deductible. They wrote that he kept the car and accepted $1,796.30.

They argued that he exercised no right of recourse and extinguished his claim.

Millar answered that a showing of fraud would set aside the agreement.

At a hearing defense attorney Kevin Parker said he had no affidavit from Billups that he was defrauded in any way.

Plaintiff attorney Gerard Schneller said, "We have one prepared."

He said, "We can have that in the file within two hours."

Billups would never produce an affidavit. Nor would he ever produce any enthusiasm for suing GEICO.

"I didn't want to do it in the first place," he said in a deposition in 2001. "But it got so every night or every day somebody was calling, calling."

He said the suit was going away. He said it would be dropped.

He said, "I am at a point in my life where, you know, I don't want to be bothered."

Needing a stronger plaintiff, the Lakin Firm added a claim from Singleton.

GEICO attorneys deposed her. They wrote to Byron that she was approached about representing a class. They wrote that she had not read the complaint.

They argued that neither Billups nor Singleton would vigorously prosecute the case.

Thomas Maag of the Lakin firm answered that, "…the vigorous prosecution test goes to the adequacy of class counsel, not the class representatives."

GEICO asked Byron to postpone a hearing on class certification until the Supreme Court decided Avery, but in 2004 Byron certified a class of Illinois consumers.

Byron wrote that plaintiffs sought to apply consumer protection laws of 32 states. He said he would exercise caution until the Supreme Court decided Avery.

The Justices dropped their bomb last August. In September, at a hearing on a GEICO motion, Byron asked for a motion to decertify.

Attorney Sheila Carmody of Phoenix delivered the motion Oct. 31. She argued that under Avery, neither plaintiff could prove deception or damages.

In April, Lakin attorney Robert Schmieder opposed the motion.

"Avery has not changed class action litigation in Illinois," he wrote. "Instead, it remains a potent and important litigation tool."

Byron knew better, though it upset him.

At his hearing he said, "It is just like when the Supreme Court of the United States decided that President Bush is the president. Even though I disagreed with it, I accepted that and I acknowledge him as my president."

He said, "I am the ship here, representing consumerism in the state of Illinois. And it's time for the captain, whoever that captain is, to raise the warning flag. Send relief, please."

He told Lakin to move class actions to Pennsylvania, Maryland or New York.

"If you want to take appeal, which I would suggest that you do, for clarification by the Fifth, I think there's so many issues that have been left unanswered," he said.

Byron gave Lakin 30 days to appeal. On the 29th day Lakin and GEICO settled.

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