Attorney Lanny Darr of Alton still insists he suffered damage when Affirmative Insurance offered him a cheap rental car after an accident, even though Affirmative sent him a check for the cost of the luxurious vehicle he rented instead.
Evan Schaeffer of Godfrey, Darr's attorney in a proposed class action, wrote in an Oct. 26 brief that Affirmative sent the check as an offer of settlement.
Schaeffer wrote, "Defendant is confusing damage in the underlying transaction with a settlement offer after the case was filed."
Schaeffer asked Madison County Circuit Judge Daniel Stack to deny a defense motion for summary judgment against Darr.
Stack expects a response from Affirmative by Nov. 27. He will set a hearing after that.
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.
Schaeffer filed suit for Darr, 16 days after the accident. Schaeffer proposed to certify Darr as representative of a plaintiff class.
Two days later Darr rented a Jeep Grand Cherokee at Roberts Motors in Alton, for $69.95 a day. He returned it three days later. With tax the bill came to $222.44.
Darr asked Affirmative for reimbursement. In a letter to Affirmative attorney Peter Morse of Chicago 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 and a letter asking him to dismiss the suit.
Morse wrote, "…you have not provided any reason to Affirmative as to why a brand new Dodge Neon from Enterprise would not satisfy your transportation needs."
Darr did not cash the check. By cashing it he would have released all claims.
Schaeffer amended Darr's complaint twice last year. He accuses Affirmative of common law fraud by misrepresentation.
According to Schaeffer, Affirmative proved its dishonesty by paying for the Jeep.
Schaeffer wrote, "Defendant falsely stated that it would pay only a stated fee for a rental car when, in fact, it would pay more than the stated fee."
"Defendant falsely stated that it would not pay an amount for rental that would allow Illinois consumers to rent a car of the same or similar kind and quality as that which was damaged, when, in fact, it sometimes did pay such an amount," he wrote.
"…if Defendant had not made false statements, Plaintiff would not have had to seek an alternative arrangement and would have suffered no damage.
"Defendant lied about two things: how much a rental car cost and how much it would ultimately be willing to reimburse.
"Plaintiff relied on these statements and acted in a way that caused him to suffer damage."