Judge Daniel Stack

A year ago the Illinois Supreme Court walloped class action litigation by overturning a $1.2 billion Williamson County verdict, and ever since, defendants have been savoring the victory.

In Madison County, two insurers have scrapped a weak argument for dismissing a proposed Lakin Law Firm class action and replaced it with one that packs the power of the high court's Aug. 18, 2005 decision in Avery v. State Farm.

Attorney Troy Bozarth of Edwardsville on Aug. 4 filed an amended motion to dismiss claims of Sallie Lewis and Maria Hernandez against Mid-Century Insurance and Farmers Insurance Exchange.

The Lakin firm sued in 1999, claiming the defendants improperly reduced payouts on medical bills.

The plaintiff roster changed through the years. In 2004, the Lakin firm filed its fifth amended complaint on behalf of Lewis and Hernandez.

The insurers moved then to dismiss the fifth amended complaint, but in the wake of Avery they decided they could improve on their motion.

Bozarth wrote to Madison County Circuit Judge Daniel Stack that Avery put to rest any argument that nonresidents can bring claims under Illinois consumer fraud law for conduct outside of Illinois.

Bozarth wrote that in the case of Hernandez, a Texas insurer issued a policy to a Texan, and her accident and treatment took place in Texas.

"Illinois, in fact, has no connection whatever to Ms. Hernandez' claims," Bozarth wrote.

Under Avery, he wrote, neither plaintiff could allege deception by misrepresentation because they were not policyholders and had no prior relationship with the defendants.

He wrote that Lewis and Hernandez were passengers in vehicles the defendants insured.

He wrote that their consumer fraud claims were nothing more than claims for breach of contract, and that under Avery a breach of contract claim cannot constitute a valid consumer fraud claim.

"Even before Avery, courts repeatedly held that a mere alleged breach of contract does not amount to consumer fraud," he wrote.

"Avery reaffirmed this principle in no uncertain terms."

He wrote that defendants explained the payments in letters, gave phone numbers, and invited plaintiffs to inquire about the reductions.

Review of medical bills is not rendered deceptive simply because the insured disagrees with the reviewer's conclusion, he wrote.

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