American Family should provide name of live plaintiff to substitute dead one, attorneys argue

By Steve Korris | Sep 13, 2007

Judge Stack

Lakin Law Firm attorneys who have carried on a class action for three years with a dead plaintiff have figured out how to find a live one.

They think the defendant, American Family Insurance, should hand over a plaintiff on a platter.

On Sept. 4, a day before the suit would have expired like Lakin plaintiff Manuel Hernandez did, the Lakins moved to stay the deadline.

Dennis Barton wrote that American Family Insurance refused to provide documents concerning class member identities.

He wrote that the insurer unduly prejudiced widow Nora Hernandez's attempt to identify persons who might qualify to lead the suit.

Madison County Circuit Judge Daniel Stack set a hearing Oct. 24.

On July 6 Stack rejected Nora Hernandez as class representative, because she did not belong to the class.

He gave the Lakins 60 days to find a plaintiff.

On Aug. 27, eight days from the deadline, Barton filed an unopposed motion for a 60 day extension to Nov. 5.

He wrote that on Aug. 16 American Family Insurance objected to a request for class identity documents.

In a chilly note for an unopposed motion, he wrote that the insurer "was not compliant with Plaintiff's request in any way."

As it turned out, the motion was not at all unopposed. Before the sun set, Barton swallowed the word.

In a substitute motion he wrote, "The claim that the motion was 'unopposed' was an unintended representation that does not reflect the defendant's position."

Manuel Hernandez died in 2004, but no one told Stack until 2006.

Stack did not hear it from the Lakins. American Family Insurance reported the death to the court.

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