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

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Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 343 (4th Cir. 1998). 18/ b. Individualized Proof Was Necessary To Determine The Quality Of The Non-OEM Parts State Farm Specified And The Pre-Loss Condition Of Class Members’ Vehicles. The second element plaintiffs had to prove was that the non-OEM parts State Farm specified were so inferior that they could not be used to restore the vehicles in question to pre-loss condition. Because pre-loss condition is the benchmark by which the repair is to be judged, plaintiffs had to prove the pre-loss condition of each class member’s vehicle. If non-OEM parts were actually installed on vehicles, plaintiffs also had to prove the condition of the vehicle after it was repaired and had to show that the repair had been competently performed, but that the part could not be used to achieve the desired effect. Proving all of those facts would necessarily require an individual trial as to each class member’s repair. The evidence showed that the pre-loss condition of class members’ vehicles varied widely. Some vehicles were old and in poor condition. 19/ Others had been in previous accidents and had already been repaired with non-OEM parts. R. 8013-14, 8069-70, 8300. A brand-new OEM fender is not required to restore an old vehicle with battered and rusted 18/ In Meineke, the Fourth Circuit reversed a $390 million judgment in favor of a class of Meineke franchisees on the ground (among others) that the trial court had abused its discretion by certifying the class. As in this case, the plaintiffs in Meineke had attempted to “substitute [an expert’s] ‘hypothetical or speculative’ evidence, divorced from any actual proof of damages” for proof of damages actually suffered by individual franchisees. The court observed: “That this shortcut was necessary in order for this suit to proceed as a class action should have been a caution signal to the district court that class-wide proof of damages was impermissible.” 155 F.3d at 343. 19/ For example, class member Peggy Frey had a ten-year old Ford Mustang with over 100,000 miles that was in “very poor mechanical condition,” with fog lights held in place by clothespins. C. 13886-87. -38-
fenders to its pre-loss condition. See Bellefonte Ins. Co. v. Griffin, 358 So.2d 387, 390 (Miss. 1978) (policy requiring payment for “like kind and quality” parts contemplates an adjustment for depreciation of, and pre-accident damage to, the original part). And if a non- OEM part was already on the car as a result of a previous repair (see, e.g., R. 8300), it could not possibly be a per se breach of contract to specify a replacement that was also a non-OEM part. But, as plaintiffs’ own expert witnesses conceded, the only way to tell whether the parts State Farm had specified had been used to restore a vehicle to its pre-loss condition was to look at the actual pre-loss condition of the vehicle in question (R. 4927-28, 12182) — an exercise that would have been physically impossible to accomplish in a single trial of the claims of almost 5 million class members. In order to prove each class member’s breach of contract claim, plaintiffs faced the equally impossible task of establishing that each of the literally tens of thousands of different non-OEM repair parts State Farm specified was so inferior that it could not be used to restore a vehicle to its pre-loss condition. These parts were made by scores of different manufacturers over a more than ten-year period in plants all over the world. As a matter of commonsense, even if plaintiffs could have proved that certain class representatives or other members of the class had received defective non-OEM parts that failed to restore their particular vehicles to their pre-loss conditions, that would not prove that different parts, made by different manufacturers for cars of different makes, models, or years failed to restore other policyholders’ vehicles to their particular pre-loss conditions. 20/ Thus, contrary 20/ See, e.g., Johnson v. Ford Motor Co., 988 F.2d 573, 579-80 (5th Cir. 1993) (plaintiff cannot prove defective joint assembly in 1983 Ford Escorts by offering evidence of defects in different Ford parts, different Ford models, or Ford Escorts manufactured in different -39-
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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
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 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
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: that are incongruous with the effic
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
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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
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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
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laws of the State where the policy
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This Court should follow the weight
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other states, Illinois cannot apply
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state’s law when it is not within
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headquartered in Michigan); Endo, 1
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for this Court to alter that author
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y using parts of like kind and qual
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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
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A. It Is Unconstitutional To Punish
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that will subject him to punishment
Page 163 and 164:
fact benefitted from access to non-
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deterrence and therefore must be va
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517 U.S. at 576. This case is not i
Page 169 and 170:
either higher premiums or the incre
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No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

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