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

More documents

Recommendations

Info

had failed to meet their burden of proving that all non-OEM parts received by class members were inferior to the parts they replaced and were incapable of restoring each class member’s car to its pre-loss condition. C. 29340, 29881. In response, plaintiffs contended that they were not required to prove that all non-OEM parts were inferior, and that the entire class could prevail even if only some class members had received an inferior non-OEM part and only some had suffered an economic loss. R. 12569, 7603. The court denied State Farm’s motions without comment. R. 7614, 12350. At the close of the evidence, plaintiffs sought an order striking all of State Farm’s remaining affirmative defenses, including waiver, estoppel and consent, on the ground that State Farm had failed to prove these defenses on a classwide basis. C. 29999. The circuit court granted plaintiffs’ motion with respect to waiver and estoppel, holding that those defenses did not go to the quality of the parts, which was the “issue in this case.” R. 12351. The court denied the motion to strike State Farm’s consent defense, stating that State Farm was free to argue consent to the jury. R. 10154. However, the court had already barred State Farm from introducing any evidence of consent, precluding it from showing that a number of states specifically require consent as a condition to the specification of non-OEM parts and that in one state (Indiana) State Farm’s records showed that 93% of the insureds who were asked consented to the use of non-OEM parts. R. 10154-55. The circuit court rejected virtually all of State Farm’s proposed instructions and instructed the jury almost entirely with pattern instructions from the I.P.I. form book. R. 12464-65. During the jury instruction conference, the circuit court acknowledged that plaintiffs’ burden was to prove that “it’s more probably true than not that all [non-OEM -24-
parts] are inferior.” R. 12539 (“all does mean all”). But the court rejected State Farm’s proposed instructions that would have told the jury that plaintiffs had the burden of proving that all non-OEM parts specified in class members’ repair estimates were inferior to the parts they replaced and failed to restore each class member’s vehicle to pre-loss condition. See A. 65-68; R. 12575-77. The court also refused to instruct the jury that plaintiffs had to establish the pre-loss condition of class members’ vehicles in order to prove that the non- OEM parts specified by State Farm failed to restore those vehicles to their pre-loss condition. R. 12490-91; A. 69. Instead, over State Farm’s objection, the jury was instructed only that plaintiffs were required to prove that State Farm had breached its “contract with the plaintiff class.” A. 63; see also A. 61. The circuit court also instructed the jury that, if it found that State Farm had breached its “contract” with the class, it was required to award damages on an aggregate basis. A. 61. The court refused to instruct the jury that damages could not be based on speculation or conjecture. A. 75; R. 12500-01. The court also refused to instruct the jury that it had the option of rejecting plaintiffs’ theory of “specification” damages, even though the court had previously ruled that the propriety of such damages was a question for the jury. A. 71; R. 12492-94, 12524-25. The circuit court denied State Farm’s request to propound an interrogatory that would have asked the jury whether it had found that all non-OEM parts specified on State Farm repair estimates during the class period were inferior. R. 12599. The court also denied State Farm’s request that the jury render verdicts or answer interrogatories on the claims of each class representative who appeared at trial, accepting plaintiffs’ argument that the named -25-
Page 1 and 2: 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
Page 9 and 10: Hansberry v. Lee, 311 U.S. 32 (1940
Page 11 and 12: 1. Plaintiffs’ Body Shop Witnesse
Page 13 and 14: People v. Clayton, 302 Ill.App.3d 2
Page 15 and 16: 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
Page 23 and 24: NATURE OF THE CASE This is an appea
Page 25 and 26: STATUTES INVOLVED Relevant portions
Page 27 and 28: to its “pre-loss condition.” DX
Page 29 and 30: 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: Second, plaintiffs sought “instal
Page 49 and 50: had an adequate remedy at law if St
Page 51 and 52: loss condition. Instead of requirin
Page 53 and 54: ARGUMENT I. Class Certification Vio
Page 55 and 56: members.” Slimack v. Country Life
Page 57 and 58: of evidence State Farm would be ent
Page 59 and 60: that are incongruous with the effic
Page 61 and 62: fenders to its pre-loss condition.
Page 63 and 64: a result of Allstate’s specificat
Page 65 and 66: insurance regulators and consumer a
Page 67 and 68: have been the overwhelming predomin
Page 69 and 70: some class members and the issue of
Page 71 and 72: not sooner, that plaintiffs could n
Page 73 and 74: explained above, class members who
Page 75 and 76: Even if the court had been right in
Page 77 and 78: value” of “parts at the time of
Page 79 and 80: page 7, supra. All of these statute
Page 81 and 82: (7th Cir. 1995) (decertifying class
Page 83 and 84: As the circuit court itself recogni
Page 85 and 86: the same shortcut, arguing — just
Page 87 and 88: epresentatives who appeared at tria
Page 89 and 90: — was injured by the alleged dece
Page 91 and 92: Litig., 182 F.R.D. at 225. Basic fa
Page 93 and 94: Meineke’s continued financial via
Page 95 and 96: 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 and 148:
for this Court to alter that author
Page 149 and 150:
y using parts of like kind and qual
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
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?