EAST ST. LOUIS – Lawyers suing State Farm intend to depose Illinois Supreme Court Justice Lloyd Karmeier, according to the insurer.
Patrick Cloud of the Heyl Royster firm in Edwardsville reported the plan to U.S. District Judge David Herndon on Aug. 5 in a lawsuit that seeks to void Avery v. State Farm, an Illinois Supreme Court decision that overturned a $1.05 billion class action judgment from Williamson County.
Cloud wrote that plaintiffs, who are proposing a two year discovery schedule, indicate they will conduct dozen of depositions, “including a stated intention to take the deposition of at least one sitting Justice of the Illinois Supreme Court, Justice Lloyd Karmeier.”
State Farm moved earlier this year to stay discovery, and Magistrate Judge Stephen Williams denied it.
State Farm appealed the denial to Herndon, who has not ruled on it.
In the underlying Avery case, plaintiffs claimed State Farm supplied inferior automobile parts for millions of repairs.
The losing plaintiffs’ lawyers revived the case last year as a civil racketeering suit, claiming the Avery decision resulted from State Farm’s allegedly secret support of Karmeier in his election bid in 2004.
State Farm moved to dismiss, and Herndon denied the motion in March.
A motion that State Farm filed in April for reconsideration of his order denying the motion to dismiss remains pending.
The motion to dismiss invoked res judicata and collateral estoppel, principles that prevent judges from deciding cases that other judges have decided.
The motion invoked a simpler principle, comity, which means getting along.
Herndon could also dismiss the suit under a precedent the U.S. Seventh Circuit appeals court set in 2011, State Farm now argues.
Cloud wrote that the Seventh Circuit cited Avery as “the common sense proposition that a policyholder’s suit against the insurer for breach of its promise to restore its collision damaged car to its preloss condition cannot succeed without an examination of the car.”
Finally, State Farm argues that Herndon could deny class certification.
Cloud wrote that “the requirements for class certification cannot be met and no amount of time or discovery can cure the deficiencies.”
He wrote that plaintiffs had voluminous discovery in Avery.
“Discovery cannot provide plaintiffs with a means to avoid the overwhelmingly individual inquiries that would be necessary in this case to establish liability, if any, to the individual class members and the amount of damages, if any,” he wrote.
To prove racketeering, Cloud wrote, plaintiffs must prove they sustained financial injury and that Karmeier’s participation was the proximate cause of the injury.
He wrote that they must prove that they would have been entitled to recover in Avery and that they would have recovered if not for Karmeier.
He wrote that each class member must show a concrete and actual injury.
“A speculative and amorphous injury is not sufficient,” he wrote.
Cloud called on Herndon to deny class certification without delay.
“Plaintiffs’ motion for class certification is ripe for decision by this court,” he wrote.
They filed the motion in June but proposed in July to delay action on it.
They told Herndon they filed it as a place holder and didn’t expect State Farm to file a brief opposing it.
Cloud wrote in his brief that failure to respond to the motion might have been deemed an admission of its merit.
“Plaintiffs’ asserted rationale for filing a place holder class certification motion - to prevent defendants from ‘picking off’ the named plaintiffs – does not withstand scrutiny,” he wrote.
Cloud wrote that plaintiffs filed the suit more than a year before moving for class certification.
“During that time, State Farm certainly did not attempt to ‘pick off’ any of the named plaintiffs,” he wrote.