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

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to the requirement established by this Court in Slimack, this was not a case where “successful adjudication of the purported class representatives’ individual claims will establish a right of recovery in other class members.” 227 Ill.App.3d at 292-93. To properly prove the claims of individual class members, plaintiffs would first have had to present separate proof with respect to each of the 33,000 different kinds of non-OEM repair parts that were actually installed on State Farm policyholders’ vehicles. Then, they would have had to show that any defects identified in the repair jobs were the result of inherent defects in the parts, rather than a lack of skill on the part of any of the thousands of different bodyshops that performed the repairs in question. 21/ The daunting prospect of having to try the merits of each class member’s claim individually has caused other courts to deny motions to certify much smaller classes challenging the specification of non-OEM repair parts. In Rios v. Allstate Ins. Co., No. 94 CH 11396 (Cook County Cir. Ct. Jan. 27, 1998), the Circuit Court of Cook County expressly rejected the reasoning employed by the circuit court in this case and refused to certify a class of Allstate policyholders from only two states (Illinois and Indiana) who sought damages as years); Floyd v. General Motors Corp., 960 P.2d 763, 766 (Kan. App. 1998) (evidence that GM recalled certain 1992 models to determine whether particular bolt was missing from steering mechanism was inadmissible to prove steering defect in 1988 model). See also R. 4906 (admission of plaintiffs’ witness Ryles that problems with a non-OEM part made by one manufacturer would not justify the conclusion that other non-OEM parts made by a different manufacturer were defective). 21/ See In re Ford Motor Co. Vehicle Paint Litig., 182 F.R.D. 214, 220 (E.D. La. 1998) (holding certification inappropriate because, among other things, a variety of individual factors apart from the allegedly defective paint process could have affected how paint performed, and the parties would have been required to litigate the issue of causation on a case-by-case basis). -40-
a result of Allstate’s specification of non-OEM repair parts. The Rios court concluded that there were simply too many variables that have to be considered in deciding whether a non- OEM part restored a vehicle to its pre-loss condition to make it feasible to resolve the individual claims of thousands (let alone millions) of class members on a classwide basis. C. 23924-25. Similarly, in Murray v. State Farm Mut. Auto. Ins. Co., No. 96-2585, slip op. at 26 (W.D. Tenn. Aug. 19, 1997), the court refused to certify a class of Tennessee policyholders, on the ground that “hundreds or thousands of mini-trials [would be required] in order to determine if plaintiffs were entitled to recover.” C. 2968. These decisions reflect the prevailing view throughout the country that significant variations in products alleged to be defective preclude class certification. See, e.g., Sanneman, 2000 WL 257452, at *9 (denying certification of claims challenging Chrysler’s new painting process, involving eight model years, 13 manufacturing plants and hundreds of different colors of paint supplied by two different manufacturers); Walsh v. Ford Motor Co., 130 F.R.D. 260, 270 (D.D.C. 1990) (denying class certification where differences in design of four different engine systems were not “minor and immaterial”); see also Goetz v. Village of Hoffman Estates, 62 Ill.App.3d 233, 237-238 (1st Dist. 1978) (differences in electrical wiring of subdivision homes precluded class certification in suit alleging negligent wiring). Indeed, other courts have declined to certify classes alleging defects in products that are far more uniform in composition and design than the 33,000 non-OEM parts at issue here — including cigarettes, airplane kits, and condominiums. 22/ 22/ See, e.g., Barnes, 161 F.3d at 135 (affirming decertification of class because “[d]efendants manufactured hundreds of different types of cigarettes over the years and have even made changes within each brand”); Horizon Unlimited, Inc. v. Silva, 1998 WL 238468, -41-
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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 and 60: that are incongruous with the effic
Page 61: fenders to its pre-loss condition.
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
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In this case, plaintiffs’ experts
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Bender could not swear that the non
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OEM part construction “had some d
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theory, even non-OEM parts that are
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of his training or expertise”). P
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eflected a policy of “discriminat
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“speak up for justice.” R. 1301
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12984-85. The perversion of ostensi
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Polywheels company makes both the O
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parts — was simply a made-for-lit
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In contrast, each of the 47 other s
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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
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percentage of the class (New York a
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committing fraud: if all non-OEM pa
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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
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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
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either higher premiums or the incre
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