No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

on remand. No expert could properly opine on the quality of all 33,000 kinds of parts at
issue here. Thus, attempting to prove this case on a classwide basis would inevitably lead
to a flawed and unsustainable result.
D. The Circuit Court Erred As A Matter Of Law By Allowing Plaintiffs To
Rely On A Market “Perception” Theory To Determine Whether Non-
OEM Parts Met The Contractual Standard.
In a last-ditch effort to find some basis for universally condemning non-OEM parts,
plaintiffs offered the jury a “perception” theory, arguing that even if non-OEM parts were
of good quality, specifying them nevertheless breached State Farm’s contract because
consumers perceived non-OEM parts poorly due to negative portrayals in the media.
Plaintiffs claimed that, because of this perception, even non-OEM parts that were as good
as OEM parts would not restore vehicles to their pre-loss market value and thus would not
suffice to restore any vehicle to its pre-loss condition. R. 4434-35, 12861.
Plaintiffs should not have been permitted to offer their “perception” theory to the
jury. As demonstrated above, under the case law applicable in several states, it is clear that
an insurance company’s obligation to restore a vehicle to its “pre-loss condition” means its
physical condition prior to the accident and not its market value. See page 57, supra. Thus,
even if plaintiffs were right on the facts (which they were not), their perception theory
should have been excluded as a matter of law with respect to class members in those states.
Plaintiffs’ theory should also be deemed foreclosed under the laws of the 38 states that
expressly permit insurance companies to specify non-OEM parts: it simply cannot be true
that state legislators and regulators expressly allowed insurance companies to meet their
contractual obligations by specifying non-OEM parts even though, under this “perception”
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