Attorney Brad Lakin tried to replace a dead class action plaintiff with a live one, but then he decided to stick with the dead one after all.
"The death is irrelevant," Lakin told Madison County Circuit Judge Daniel Stack at a Nov. 29 hearing.
Lakin withdrew a motion to substitute an Ohio woman for the late Manuel Hernandez of Granite City in a class action against American Family Insurance.
Lakin said he would file an amended complaint for the widow, Nora Hernandez.
For the time being the corpse continues as class representative.
Manuel Hernandez died in January 2004.
Lakin did not report the death to Stack. American Family Insurance reported it, more than two years after it happened.
American Family Insurance has tried since to establish when Lakin knew that his plaintiff died.
In April the insurer inquired by letter to Lakin lawyer Jeffrey Millar, but he declared the letter improper because American Family did not serve it on the plaintiff.
Hernandez sued in 2000, claiming American Family Insurance improperly reduced payouts on accident claims.
While Hernandez lived, Stack certified him to represent a plaintiff class.
After he died, Stack compelled American Family Insurance to turn documents over to him. Last year Stack denied a motion to decertify the class action.
This year, after American Family Insurance discovered the death, Millar moved to substitute Helen Nemeth as class representative.
The insurer opposed substitution, claiming Nemeth lived in Ohio and she would have to add an Ohio defendant.
The insurer argued that Nemeth did not belong to the class because the Lakin firm did not send notices of the class action to the class.
Defense attorney Anthony Martin of St. Louis prepared to argue over Nemeth in Stack's court, but at the hearing Lakin cut Nemeth loose.
Martin said Stack should not allow an oral motion to substitute Nora Hernandez. He said an amended complaint would not be timely.
He said, "Her letters of administration were filed in 2004. Her probate file was closed in 2006. Nora Hernandez had counsel two years in probate court."
He said, "There is no way I see that timeliness can be argued with a straight face."
He said, "This situation is different from any case we have found."
Lakin cited an Illinois Supreme Court decision that the date of death was not an issue.
He said, "What happened before they filed the suggestion of death is irrelevant. The issue is what has happened since then."
He said Stack should protect the rights of the class.
Martin said, "Should class counsel know when a class representative dies?"
Stack said to Lakin, "With all the discovery, did you try to discuss any of it with your client?"
Lakin replied so softly that only Martin, Stack and a court reporter could hear.
Stack and Martin spoke up throughout the hearing, but Lakin's voice kept dropping.
Lakin said, "Contrary to what you read in the newspapers," and his voice dropped.
Martin told Stack the class received no notice. He said, "There is no class."
Stack said Lakin could file an amended complaint. Stack said, "You might want to find another plaintiff."
Stack asked if there was a lot of discovery left. Martin said yes.
Stack said he would stay discovery until he resolved the substitution.
Lakin asked if that meant he stayed all discovery except on the adequacy of Nora Hernandez as class representative. Stack said yes.
Martin said, "The complaint on file is out?" Stack said yes.
Stack said Lakin would move to qualify Nora Hernandez. He said Martin would object to the motion and seek a hearing.