Circuit Judge Daniel Stack
While goofy class action lawsuits disappear by dozens in Madison County circuit court, the goofiest of all has reached a moment of decision.
For 18 months attorney Lanny Darr of Alton has claimed that Affirmative Insurance Company must provide expensive rental vehicles for owners of expensive vehicles.
Darr persists even though Affirmative sent him reimbursement for a Jeep Grand Cherokee that cost more than three times as much as a plain rental car.
Now Affirmative has asked Circuit Judge Daniel Stack for summary judgment, arguing that Darr's claim is moot because Affirmative offered complete relief.
Attorneys Peter Morse of Chicago and Robert Shultz of Edwardsville wrote, "Once the defendant tenders the requested relief to the plaintiff, there is no longer a case or controversy."
They wrote, "Affirmative certainly was not required to reimburse Plaintiff for a Grand Cherokee because he has a personal preference for sport utility vehicles."
Stack set a hearing Thursday, Sept. 28.
The accident happened Feb. 14, 2005, in Alton. Affirmative, insuring the other driver, agreed to pay for damage to Darr's Ford Explorer.
Darr asked for a rental vehicle during repairs to his Explorer. Someone at Affirmative said he could rent through Enterprise at about $19 a day.
This struck Darr as gross injustice. On his behalf attorney Evan Schaeffer of Godfrey sued Affirmative March 2, 16 days after the accident.
Schaeffer proposed to certify Darr as representative of a plaintiff class.
Darr then rented a Grand Cherokee at Roberts Motors in Alton, for $69.95 a day.
He returned it three days later. With sales tax the bill came to $222.44.
He faxed a reimbursement request to Affirmative, but he did not want reimbursement. He wanted to build a case.
In a letter to Morse he wrote, "I will not voluntarily dismiss my lawsuit."
He wrote, "I think we can all agree it is improper for an insurance company to offer a flat rate to all individuals sustaining property damage due to your insured's negligence."
Morse sent Darr a check for $222.44, with a letter asking him to dismiss the suit.
Morse wrote, "As of this time, you have not provided any reason to Affirmative as to why a brand new Dodge Neon from Enterprise would not satisfy your transportation needs."
He wrote, "Instead, your position is that the claimant is entitled to a vehicle with the same comforts, luxury and prestige as the vehicle the claimant was operating at the time of the accident."
Apparently Darr did not cash the check, though the record does not show whether he did. By cashing it he would likely have released all claims.
Darr and Schaeffer amended their complaint in June 2005, and again in October. It accuses Affirmative of common law fraud by misrepresentation.
For Affirmative, Morse and Shultz wrote in their Sept. 15 motion that Darr's fraud claims were not only moot but also insufficient as a matter of law.
They wrote that Illinois insurance law provides for a flat daily rental, if the insurer tells a claimant where to obtain a vehicle at that price.
They wrote that a Department of Insurance bulletin provided an example of an appropriate flat rate of $20 a day.
They wrote that, "…the final nail in the coffin is the fact that evidence is uncontroverted that the Plaintiff has not sustained any damages."