Avery decision foils Madison County right of way class action

By Steve Korris | Aug 17, 2006

Seven days after class action attorneys proposed a three ring circus trial against cable company Level 3 Communications, they abandoned the plan and settled the suit.

Edwardsville attorney Elizabeth Heller presented a blueprint for a triple trial to Madison County Circuit Judge Andy Matoesian Aug. 4, but a docket entry on Aug. 11 announced an abrupt end to her grand design.

Plaintiffs Harriet Bauer, George Schillinger and Ruth Schillinger claimed in 2002 that Level 3 laid fiber optic cable on railroad right of way without permission from about 16,000 owners of adjacent properties in 22 states.

Heller would have divided the property owners three ways according to the conveyances that created their interest in the right of way.

  • A land grant group would have asked if Congress granted railroads full fee interest in right of way or a limited right to use the surface for rail purposes.

  • A condemnation group would have moved for summary judgment on a finding that in all 22 states condemnation awards grant easements only.

  • A private conveyance group would have broken into two groups, one with fee interests and one with easements only.

    In cases of unclear documents Heller would have created more categories for "narrowly tailored" dispositions.

    The court would have calculated damages to each group and it would have awarded damages by the foot.

    Heller would have left one choice to Matoesian. He would have decided whether to apply Illinois law to 22 states or apply laws of all 22 states.

    Matoesian never certified the suit as a class action. Several times he set hearings on certification only to have the parties put off the hearings.

    In July 2005 Matoesian denied a motion of Level 3 to dismiss.

    A month later the Illinois Supreme Court knocked the props out from under class action litigation by wiping out a $1.2 billion Williamson County verdict in Avery v. State Farm.

    Heller argued in her Aug. 4 trial plan that Avery did not change established class action procedures and that her case differed from Avery.

    Her plan's vast scope brought back the spirit of a class action craze that prevailed from 1999 to 2003, when difficult decisions were made to sound easy.

    She called for "class wide proofs on the common issues and individual proofs on the individual issues."

    Heller wrote that the court would leave open the door for subclasses "and even decertification if the case ultimately proves unmanageable."

    She also wrote that Matoesian would hold a trial on common issues, apply his rulings to like groups of claims, and follow with a trial on damages.

    The court would address each owner's claim at a later stage, she wrote, and Level 3 could challenge any claim on any basis.

    Challenges, she wrote, "could create further sub-common issues."

    "The trial will be followed by a claims administration process to determine whether and how much each putative class member is entitled to recover," she wrote.

    She wrote that Level 3 challenged the adequacy of the named plaintiffs as class representatives based on the merits of their claims, and she wrote that the merits were irrelevant.

    "Whether each claimant will ultimately prevail depends on the resolution of the common issues…," she wrote.

    In support of her argument she cited orders that St. Clair County Circuit Judge Patrick O'Malley and retired Madison County Circuit Judge Phillip Kardis signed in 2003.

    Heller had already lost the argument, for on the same date Level 3 attorney Troy Bozarth wrote to Matoesian that the Avery decision demanded denial of class certification.

    Heller's associates include Mark Goldenberg of Edwardsville, John Massopust and Daniel Millea of Minneapolis, Nels Ackerson and Rodney Johnson of Washington, Henry Price of Indianapolis, and Catherine Colinvaux of Waltham, Mass.

    Bozarth wrote that under Avery, class representatives must show that adjudication of their claims would establish a right of recovery in other class members.

    He wrote that right of way adjacent to the Schillingers was acquired through six warranty deeds, two quitclaim deeds and a condemnation award.

    He wrote that right of way adjacent to Bauer was acquired through four warranty deeds and a quitclaim deed.

    "Resolution of Level 3's rights vis a vis the Schillingers will not be determinative of Level 3's rights vis a vis Bauer, much less any other proposed class member," he wrote.

    While Avery involved interpretations of just four standard insurance policies, he wrote, this case would require interpretation of thousands of deeds, decrees and other documents.

    And that while Avery involved one company over 11 years, this case would involve tens of thousands of persons and entities over more than a century, he wrote.

    The court would have to decide the respective rights of class members and railroads for each parcel of land, he wrote.

    Shifting individual claims to an administration process would be unconstitutional, he wrote.

    A week later the case went away. The docket declared that it was settled and a pending motion was moot.

    The parties will submit a settlement agreement to Matoesian.

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