MADISON - ST. CLAIR RECORD

Plaintiffs have split over representation in two Madison County class actions that the Lakin Law Firm filed with Freed & Weiss of Chicago.

Circuit Judge Daniel Stack plans to hear both cases June 12.

In a seven-year-old suit against Hartford Insurance, Winnie Madison has chosen the Lakins and Geraldine Huff has chosen Freed & Weiss.

The Lakins moved April 17 to withdraw as Huff's counsel.

Former Lakin attorney Richard Burke, who now associates with Freed & Weiss, entered his appearance on Huff's behalf April 27.

Burke served notice May 17 of a special setting for a case management conference before Circuit Judge Daniel Stack on June 12, at 1:30 p.m.

In an eight-year-old suit against Farmers Insurance, Maria Hernandez has chosen Freed & Weiss and Sallie Lewis has chosen the Lakins.

Freed & Weiss wants to switch the case to St. Clair County. Hernandez filed a petition March 28 to intervene in a similar case there.

The Lakins filed notice of withdrawal as counsel for Hernandez May 22, with notice of a June 12 hearing before Stack.

While the attorneys battle, prospects for the class actions they filed together keep growing dimmer.

On behalf of Lewis the Lakins pursue a claim against Farmers for breach of contract, though they have not proved there was a contract.

They pursue a claim under the Illinois Consumer Fraud Act even though the Illinois Supreme Court forbids restatement of a breach of contract claim as a consumer fraud claim.

Dennis Barton of the Lakin firm argued in a May 3 brief that Lewis would not restate the breach claim as a fraud claim.

He wrote that they were independent and opposite claims.

"If the court finds a contract exists, plaintiff will pursue the breach of contract claim and dismiss the ICFA claim," Barton wrote.

He wrote that if the court finds no contract exists, Lewis would pursue a consumer fraud claim.

He quoted a 1979 Illinois appellate court decision that, "…when a party lacks knowledge of the facts, he may plead inconsistently."

He quoted, "…the proof at trial will determine which theory, if any, entitles him to a favorable recovery."

"Plaintiff choice of selecting two different theories with which to prosecute the defendants is consistent with Illinois law even though they may not be consistent with each other," Barton wrote.