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

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2. The Circuit Court Improperly Excused Plaintiffs From Proving Proximate Cause. ICFA requires private litigants to prove not only a deceptive act or omission but also a causal link between the deception and actual damages suffered by the plaintiff. See 815 ILCS 505/10a; Connick, 174 Ill.2d at 501; Zekman, 182 Ill.2d at 374-76. Here, there was no evidence that the representations and omissions identified by the circuit court proximately caused injury to any of the class members. On the contrary, the evidence showed that none of the individual class representatives had been deceived about the quality of non-OEM parts. See Part I(B)(2), supra. By holding State Farm liable under ICFA without requiring plaintiffs to prove any causal relationship whatsoever between the alleged deception and actual harm to any member of the class — let alone the entire class — the circuit court once again altered the substantive law in order to enable plaintiffs to proceed on a classwide basis. That decision, in and of itself, requires reversal of the ICFA judgment and decertification of the ICFA class. 3. The Circuit Court’s Finding That State Farm Violated ICFA Was Against The Manifest Weight Of The Evidence, Requiring The Entry Of Judgment In Favor Of State Farm. Throughout this case plaintiffs equated breach of contract with consumer fraud. Their complaint alleged that State Farm’s fraudulent “practice” was installing “inferior” parts despite having “promised” to use “like kind and quality” parts. C. 13410. Likewise, in opposing summary judgment, plaintiffs identified the alleged fraudulent misrepresentation as “State Farm’s promis[e] in the policy to restore Plaintiffs’ vehicles to pre-loss condition like the claim for “disgorgement” damages here. See Ray v. Winter, 67 Ill.2d 296, 303 (1977). -126-
y using parts of like kind and quality.” C. 19053. As plaintiffs’ witness Robert Hunter (the “documents guy”) put it in summarizing plaintiffs’ consumer fraud theory: “If you are going to breach your contract, I think you need to warn people.” R. 6927. The circuit court accepted that view, holding that State Farm violated ICFA because it “did nothing to advise [policyholders] of the inferiority of the parts.” A. 11. The court evidently felt that, to avoid liability under ICFA, State Farm (and other insurers that specified non-OEM parts) would have needed to make disclosures like the following one that was proposed by plaintiffs: “Warning, we are about to give you bad parts.” R. 6597. But this proposed disclosure completely subsumes contract law into ICFA: a party must admit breach to avoid committing fraud. Illinois courts have repeatedly rejected the circuit court’s apparent belief that ICFA transforms breach of contract into a statutory tort. See, e.g., Zankle v. Queen Anne Landscaping, 311 Ill.App.3d 308, 724 N.E.2d 988, <strong>99</strong>2-93 (2d Dist. 2000); Lake County Grading Co. v. Advance Mechanical Contractors, Inc., 275 Ill.App.3d 452, 460 (2d Dist. 1<strong>99</strong>5); Exchange Nat’l Bank v. Farm Bureau Life Ins. Co., 108 Ill.App.3d 212, 216 (3d Dist. 1982). Recharacterizing the tort as failure to disclose the breach, rather than the breach itself, does not avoid these precedents. Few breaches of contract are ever disclosed, so virtually every breach would, under the circuit court’s reasoning, also qualify as fraud. ICFA does not countenance such a sweeping displacement of common law contract claims in favor of statutory remedies. The circuit court’s other grounds for finding liability under ICFA are equally wanting. The court concluded that State Farm violated ICFA by failing to disclose “possible -127-
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No. 5-99-0830 IN THE APPELLATE COUR
Page 3 and 4:
Charles Hester Enters. v. Illinois
Page 5 and 6:
In re Fibreboard Corp., 893 F.2d 70
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State v. Piedmont Funding Corp., 38
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Hansberry v. Lee, 311 U.S. 32 (1940
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1. Plaintiffs’ Body Shop Witnesse
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People v. Clayton, 302 Ill.App.3d 2
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VPHI, Inc. v. National Educ. Traini
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Okada v. MGIC Indem. Corp., 823 F.2
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Zekman v. Direct Am. Marketers, Inc
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Malooley v. Alice, 251 Ill.App.3d 5
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NATURE OF THE CASE This is an appea
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STATUTES INVOLVED Relevant portions
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to its “pre-loss condition.” DX
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OEM parts. 5/ At least two states
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paid the difference in cost out of
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epair estimate specified only OEM p
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potential class members whose names
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member’s vehicle other than those
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William Anderton, who had previousl
Page 41 and 42:
categorically inferior and, in fact
Page 43 and 44:
specified on their repair estimates
Page 45 and 46:
Second, plaintiffs sought “instal
Page 47 and 48:
parts] are inferior.” R. 12539 (
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had an adequate remedy at law if St
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loss condition. Instead of requirin
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ARGUMENT I. Class Certification Vio
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members.” Slimack v. Country Life
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of evidence State Farm would be ent
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that are incongruous with the effic
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fenders to its pre-loss condition.
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a result of Allstate’s specificat
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insurance regulators and consumer a
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have been the overwhelming predomin
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some class members and the issue of
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not sooner, that plaintiffs could n
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explained above, class members who
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Even if the court had been right in
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value” of “parts at the time of
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page 7, supra. All of these statute
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(7th Cir. 1995) (decertifying class
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As the circuit court itself recogni
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the same shortcut, arguing — just
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epresentatives who appeared at tria
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— was injured by the alleged dece
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Litig., 182 F.R.D. at 225. Basic fa
Page 93 and 94:
Meineke’s continued financial via
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this decision, plaintiffs were excu
Page 97 and 98: corresponding OEM part. R. 7169. In
Page 99 and 100: Mathur’s testimony was particular
Page 101 and 102: end of the day, Mathur conceded tha
Page 103 and 104: Zimny, 256 Ill.App.3d 386, 390-91 (
Page 105 and 106: the jury was focused on the wrong i
Page 107 and 108: to its pre-loss condition.” R. 12
Page 109 and 110: quality of non-OEM parts. See Baltu
Page 111 and 112: which is not surprising because the
Page 113 and 114: In this case, plaintiffs’ experts
Page 115 and 116: Bender could not swear that the non
Page 117 and 118: OEM part construction “had some d
Page 119 and 120: theory, even non-OEM parts that are
Page 121 and 122: of his training or expertise”). P
Page 123 and 124: eflected a policy of “discriminat
Page 125 and 126: “speak up for justice.” R. 1301
Page 127 and 128: 12984-85. The perversion of ostensi
Page 129 and 130: Polywheels company makes both the O
Page 131 and 132: parts — was simply a made-for-lit
Page 133 and 134: In contrast, each of the 47 other s
Page 135 and 136: occurred outside Illinois. 51/ In t
Page 137 and 138: laws of the State where the policy
Page 139 and 140: This Court should follow the weight
Page 141 and 142: other states, Illinois cannot apply
Page 143 and 144: state’s law when it is not within
Page 145 and 146: headquartered in Michigan); Endo, 1
Page 147: for this Court to alter that author
Page 151 and 152: plaintiffs’ failure to identify a
Page 153 and 154: percentage of the class (New York a
Page 155 and 156: committing fraud: if all non-OEM pa
Page 157 and 158: specification damages they had soug
Page 159 and 160: A. It Is Unconstitutional To Punish
Page 161 and 162: that will subject him to punishment
Page 163 and 164: fact benefitted from access to non-
Page 165 and 166: deterrence and therefore must be va
Page 167 and 168: 517 U.S. at 576. This case is not i
Page 169 and 170: either higher premiums or the incre
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