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

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safety concerns” involving unidentified non-OEM parts. But failure to disclose a possibility of concern is not a sufficient basis for ICFA liability. The law requires disclosure of actual known safety problems, not speculative “concerns” that “possibly” may be valid. Cf. Collins v. Hyster Co., 174 Ill.App.3d 972, 979 (3d Dist. 1988) (defendant has duty to disclose safety defect in product only when it “knows or should know that injury may occur”). Otherwise, any non-disclosure could be deemed deceptive: all products, from airplanes to toasters, raise “concerns” about safety for any prudent manufacturer or user, but few concerns are sufficiently concrete to create a duty to disclose, the breach of which is punishable as consumer fraud. The record in this case would not support a finding by a preponderance of the evidence, much less clear and convincing evidence, that State Farm had actual concerns about the safety of parts that it was actually specifying. Despite the fact that there were literally millions of non-OEM parts on the road, plaintiffs failed to adduce evidence that any person suffered any injury caused by any non-OEM part, much less one specified by State Farm. 59/ Furthermore, although plaintiffs speculated about safety concerns raised by non- OEM hoods, doors and bumpers, such concerns could not possibly support a judgment in favor of the large portion of the class who received non-OEM parts — such as plastic moldings — that have no safety implications at all. See Kelly, 308 Ill.App.3d at 644. Given 59/ This ground for liability also ignores the undisputed fact that the federal government has recalled millions of OEM parts — but no non-OEM parts — due to safety problems. R. 5431-62, 10800; DX 2002. The circuit court never explained why State Farm may specify OEM parts without disclosing possible safety concerns (and why OEM manufactures need not disclose these concerns when selling new cars), while the failure to disclose when specifying non-OEM parts constitutes fraud. -128-
plaintiffs’ failure to identify any class member who actually received a non-OEM part that allegedly raised such concerns, there is no basis whatsoever for any finding of liability based on a failure to disclose safety concerns. The circuit court also found that the term “Quality Replacement Part” was a “misleading” description of non-OEM parts. A. 11. But that ruling ignores established law holding that vague subjective statements of opinion and puffery are not fraudulent under either ICFA or the common law. See, e.g., Breckenridge v. Cambridge Homes, Inc., 246 Ill.App.3d 810, 823 (2d Dist. 1993) (“puffing” does not violate ICFA); Zimmerman v. Northfield Real Estate, Inc., 156 Ill.App.3d 154, 163 (1st Dist. 1986) (“subjective description” does not “qualify as a fraudulent misrepresentation of fact”); Spiegel v. Sharp Elec. Corp., 125 Ill.App.3d 897, 902 (1st Dist. 1984) (“mere commendation or opinion” is not fraud). The characterization of a product as “quality” is precisely the kind of subjective characterization that Illinois courts have repeatedly held is not actionable. See, e.g., Evanston Hosp. v. Crane, 254 Ill.App.3d 435, 443-44 (1st Dist. 1993) (representation that hospital care would be high-quality is not fraudulent under ICFA); Breckenridge, 246 Ill.App.3d at 823 (statements that new home would be of “custom quality” with “expert workmanship” did not violate ICFA); Zimmerman, 156 Ill.App.3d at 163 (describing house as “magnificent” and “comfortable” is not fraudulent); Spiegel, 125 Ill.App.3d at 902 (statement that copier would make “picture perfect copies” was not fraudulent). The circuit court also found that State Farm “[told] its policyholders, in various written documents which were admitted into evidence, that [non-OEM] parts were as good, -129-
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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
Page 7 and 8:
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
Page 17 and 18:
Okada v. MGIC Indem. Corp., 823 F.2
Page 19 and 20:
Zekman v. Direct Am. Marketers, Inc
Page 21 and 22:
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
Page 31 and 32:
paid the difference in cost out of
Page 33 and 34:
epair estimate specified only OEM p
Page 35 and 36:
potential class members whose names
Page 37 and 38:
member’s vehicle other than those
Page 39 and 40:
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 (
Page 49 and 50:
had an adequate remedy at law if St
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loss condition. Instead of requirin
Page 53 and 54:
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
Page 87 and 88:
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
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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 and 148: for this Court to alter that author
Page 149: y using parts of like kind and qual
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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