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

that will subject him to punishment.” BMW, 517 U.S. at 574.
In Kelsay, the Illinois Supreme Court concluded that the defendant was entitled to
believe that its conduct was legal because of (1) the absence of any decision holding that its
conduct was actionable and (2) the presence of decisions in other states suggesting that such
conduct was lawful. 74 Ill.2d at 189. Those same considerations clearly exist here. Prior
to the decision here, not one court anywhere, much less in Illinois, had ever held that
specification of non-OEM parts is a deceptive practice or otherwise constitutes fraud. On the
other hand, numerous state statutes and regulations either authorize or affirmatively
encourage the use of non-OEM parts. Accordingly, here, as in Kelsay, “it would be
extremely unfair to sustain an award against the defendant for punitive damages.” Id. at 189.
C. There Is No Evidence, Much Less Clear And Convincing Evidence, That
State Farm Had The “Evil Mind” Necessary To Justify The Imposition
Of Punitive Damages Under Illinois Law.
The Illinois Supreme Court has repeatedly expressed its misgivings regarding
punitive damages, noting that “punitive damages are not favored in the law.” Loitz v.
Remington Arms Co., 138 Ill.2d 404, 414 (1990); Kelsay, 74 Ill.2d at 188. The Court has
decried the increased frequency with which punitive damages have been imposed, see Loitz,
138 Ill.2d at 416, and has expressly advised lower courts to “take caution to see that punitive
damages are not improperly or unwisely awarded.” Kelsay, 74 Ill.2d at 188.
Punitive damages “can be awarded only for conduct for which this remedy is
appropriate — which is to say, conduct involving some element of outrage similar to that
usually found in crime.” Loitz, 138 Ill.2d at 415. This stringent standard requires evidence
that the defendant acted “with an evil motive or . . . with reckless indifference to the rights
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