MADISON - ST. CLAIR RECORD

Madison County Circuit Judge Daniel Stack opened a door to ridicule of attorney Lanny Darr's class action claim against Affirmative Insurance, and defense attorney Robert Shultz jumped right through it.

Stack, coining a phrase at a Dec. 18 hearing, defined Darr's legal theory as "anticipatory damages."

Shultz said, "Along with anticipatory fraud, I guess."

Stack granted summary judgment in Affirmative's favor on grounds of mootness.

Darr sued Affirmative in 2005 for telling him he could not rent a vehicle as nice as his own during repairs to his vehicle.

After Darr sued he rented an expensive vehicle, sent the bill to Affirmative and received a check for the full amount.

At the hearing Darr's attorney, Evan Schaeffer, told Stack that Darr could lead a class action anyway because he claimed punitive damages and because Affirmative broke Illinois insurance law.

Stack said, "You don't have the right plaintiff. I mean I don't see the injury to your plaintiff."

He said, "If you want to file a class action on a case like this, I think you need a class representative who was actually injured."

Affirmative insured a driver who crashed into Darr's Ford Explorer on Feb. 14, 2005.

Twenty-six days after the crash, Darr sued Affirmative. He claimed the insurer told him it would reimburse a rental car at $18.90 a day.

Two days after suing, Darr rented a Jeep Grand Cherokee. He returned it three days later, paid $222.44, and sent Affirmative the bill.

Affirmative sent Darr a check for $222.44, but instead of cashing it he moved to certify the suit as a class action fraud claim.

At Stack's hearing Shultz relied on a First District appellate decision, Arriola.

He said, "It stands for the proposition that says even if you don't accept the tender it's a moot point if in fact the tender offered you all the relief that was available or that was requested."

Shultz said, "They have not cashed the check but that is not a defense. We didn't say you have to sign a release."

He said, "You can flip the check over. There is no release language on it."

Schaeffer said, "There are two reasons why the tender doesn't moot this case. Number one, it was not made unconditionally."

He read from an affidavit Darr signed: "After I filed this lawsuit defendant's law firm offered to pay me more than $18.90 per day in order to settle the case. Based on these discussions and correspondence the expectation was that if I accepted the $222 that defendants offered in settlement I would also have to agree to dismiss my lawsuit with prejudice. I rejected this settlement offer."

Schaeffer said, "A second reason why the tender doesn't work to render the case moot was because it doesn't offer all the relief requested. In our complaint for fraud we ask for damages."

He asked Stack to declare Affirmative's conduct unlawful and require it to cease and desist all deceptive and unreasonable practices.

He said Stack should decide if Affirmative did what it was required to do with respect to the Illinois insurance code.

Stack read the letter Darr received.

Shultz said, "We didn't say you can only cash it if you dismiss the lawsuit. We didn't say if you dismiss your lawsuit we will send you a check. We said here's your check."

Stack said, "I think he said you requested him to sign a release of his claim."

Shultz said, "Yeah but that's not true. There is no factual evidence."

Stack quoted the letter: "In light of Affirmative's payment to you in full for your rental of a Jeep Grand Cherokee, I respectfully request that you dismiss the lawsuit you have filed against Affirmative."

Shultz said, "But it's not conditioned, absolutely not conditioned. And there is no release."

Schaeffer said, "It was his understanding based on the discussions and on this letter, the sentence especially he just quoted, that the expectation was that if he were to accept this payment, he would be agreeing to release the lawsuit and end the lawsuit."

Stack said, "Don't you think you need a class representative who actually was only given $18.90 and had to pay more to get the rental car?"

Schaeffer said, "Judge, the only option he had was to go out and rent another car. He couldn't get one from Enterprise."

Stack said, "But they paid for it."

Schaeffer said, "They said we won't pay for it."

Stack said, "But they did."

Schaeffer said, "They paid for it after he filed a lawsuit."

Stack said, "That's what I'm saying. Is this attempted fraud?"

Schaeffer said, "It was a settlement offer the way that we see it. So no, it wasn't attempted fraud."

Stack started digging. He said, "Where is the first complaint?"

Schaeffer said, "We are on the second amended complaint."

Stack ignored that and said, "I have it right here."

He said, "Even though it was not a class action, Affirmative did not agree to pay this until Mr. Darr had filed suit against them."

Shultz said, "I would word it a little differently, your honor. He filed suit and then he rented a car."

Shultz said, "When he submitted the bill eight days later -"

Stack said, "He had not been damaged yet. It was anticipatory damage."

Shultz said, "Along with anticipatory fraud, I guess."

Stack asked Schaeffer if Darr could have rented a car under his own insurance and had his insurer try to recover from the other driver.

Schaeffer said, "I am sure that in some cases that would be true, that he would have other sources of recovery – suing the driver, getting reimbursement from his own insurance company – but I would view that as a sort of collateral source kind of a deal."

Stack asked if the check included attorney fees and filing fees.

Shultz said, "No, but your honor, at that point he was representing himself. We had no opportunity. He had not even submitted the bill to us."

Shultz said, "He went out and filed the lawsuit first, rented the car second, presented the bill third, we paid it fourth within eight days of the submission of the bill."

Stack said, "You weren't given the opportunity to show you would pay it before you were sued?"

Shultz said, "That's exactly right. We were already being sued."

Stack said he would allow the motion.

Shultz said, "Should I show that it is granted on the grounds of mootness?"

Stack said yes.