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

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notice, in and of itself, would require reversal of the judgment, followed by a new notice and a new trial. See Client Follow-Up, 105 Ill.App.3d at 627 (rejecting argument that deficiencies in the notice can be cured by giving notice after judgment: “[t]o give notice to class members after a decision on the merits is to give notice after the reasons for giving it have ceased to exist”). II. The Breach Of Contract Judgment Must Be Reversed Because It Was The Product Of Numerous Prejudicial Errors. The trial of plaintiffs’ breach of contract claim was riddled with errors in instructions, in allocating burdens of proof, and in admitting and excluding evidence. Those errors, individually and collectively, were so clearly prejudicial that it was an abuse of discretion for the circuit court to deny State Farm’s motion to vacate the judgment and grant a new trial. McClure v. Owens Corning Fiberglas Corp., 188 Ill.2d 102, 132-33 (1999) (standard of review on appeal from denial of a motion for a new trial is abuse of discretion). Furthermore, most of the errors stemmed from the circuit court’s desire to preserve the case as a class action, as the court allowed plaintiffs to take shortcut after shortcut to paper over their inability to present any real classwide proof. Because these trial errors demonstrated beyond any doubt that this case cannot properly be tried as a class action, the only proper remedy is to vacate the $450 million judgment and to order the breach of contract class decertified on remand. A. The Circuit Court’s Admission Of Legally Invalid And Wholly Speculative Damages Theories Constitutes Reversible Error And Demonstrates Why The Class Must Be Decertified On Remand. Perhaps the most egregious example of an improper shortcut was the circuit court’s decision to allow plaintiffs to seek damages on an aggregate, classwide basis. As a result of -72-
this decision, plaintiffs were excused from proving who was damaged by the alleged breach of contract — or even what percentage of the class was damaged. In addition, the court’s ruling allowed plaintiffs to seek over $1 billion in breach of contract damages despite their inability to provide any reasonable basis for estimating the damages actually suffered by class members. “[B]asic contract theory requires that damages be proved with reasonable certainty and precludes damages based on conjecture or speculation.” Ouwenga v. Nu-Way AG, Inc., 239 Ill.App.3d 518, 523 (3d Dist. 1992). 33/ In this case, however, the ordinary requirements for proving damages were thrown out the window, in order to ensure that the case could proceed on a classwide basis. 1. The Circuit Court Erred In Allowing Plaintiffs To Present Their Legally Invalid Theory Of “Specification Damages” To The Jury. As explained above, by the time the case was tried, it had become clear that a large portion of the class had not suffered any legally compensable damages. Plaintiffs had conceded from the beginning that policyholders whose repair estimates included non-OEM parts, but who received OEM parts at no additional cost, should not even be part of the class. See Plaintiffs’ Class Certification Brief, C. 3446 (“[i]t is axiomatic that any person whose car was repaired only with OEM parts is not part of the class for which certification is sought”); Class Certification Order, A. 29 (“[a]ny person whose car was repaired only with 33/ See also Fieldcrest Builders, Inc. v. Antonucci, 311 Ill.App.3d 597, 607 (1st Dist. 1999) (“The party seeking the damages bears the burden of establishing the proof of the alleged damages with reasonable certainty”); Northwest Commerce Bank v. Continental Data Forms, Inc., 233 Ill.App.3d 124, 130 (2d Dist. 1992) (“plaintiff must prove damages to a reasonable degree of certainty and evidence cannot be remote, speculative, or uncertain”); Schoeneweis v. Herrin, 110 Ill.App.3d 800, 808 (5th Dist. 1982) (plaintiff must “establish a reasonable basis for computation” of damages). -73-
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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
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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
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Zekman v. Direct Am. Marketers, Inc
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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
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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 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: Meineke’s continued financial via
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
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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
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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