Arriola v. Time Insurance Co.
Annotate this Case FIFTH DIVISION
June 8, 2001
No. 1-99-2136
RICHARD ARRIOLA, on Behalf of Himself
and All Others Similarly Situated,
Plaintiff-Appellant,
v.
TIME INSURANCE COMPANY,
Defendant-Appellee.
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Appeal from the
Circuit Court of
Cook County
Honorable
Sidney A. Jones, III
Judge Presiding.
PRESIDING JUSTICE QUINN delivered the opinion of the court:
This case involves a permissive appeal of a certified question pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). The underlying litigation involves a multi-state class action suit challenging Time Insurance Company's (Time) collection of subrogation payments from its own insureds, where the applicable insurance policies had no provisions for subrogation. After the case was filed on August 30, 1993, but before plaintiff filed a motion for class certification, Time refunded payments to 44 of the 46 putative members of the class who resided in Illinois. Time tendered refunds to the remaining two insureds, including the plaintiff, but plaintiff refused the tender. On November 4, 1994, Time filed a motion to dismiss the case pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619 (West 1998). On May 15, 1995, the trial court dismissed the case with prejudice, holding that as there were only two potential members of the class in Illinois, plaintiff did not meet the numerosity prerequisite as defined in section 2-801 of the Illinois Code of Civil Procedure (735 ILCS 5/2-801 (West 1998)). The trial court held that, consequently, plaintiff could not maintain a multi-state class action in Illinois.
In a prior appeal, this court reversed the trial court's dismissal, holding that a motion to dismiss under section 2-619 may not be based on an asserted lack of numerosity. Arriola v. Time Insurance Co., 296 Ill. App. 3d 303, 308, 694 N.E.2d 649 (1998) (Arriola I). In doing so, we relied upon the holding in Levy v. Metropolitan Sanitary District of Chicago, 92 Ill. 2d 80, 83, 440 N.E.2d 881 (1982). There, our supreme court held:
"[N]either an order denying class certification
or decertifying a class nor an order dismissing
class action allegations is final and *** such
orders nation of the litigation only under the inter- locutory appeal provisions of the Supreme Court Rules.> [Citation.]" Levy, 92 Ill. 2d at 83. The court in Levy further stated that such orders must be appealed pursuant to Supreme Court Rule 308. Supreme Court Rule
308 provides, in pertinent part: "Rule 308. Interlocutory Appeals by Permission (a) Requests. When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for dif- ference of opinion and that an immediate appeal from the order may materially advance the ulti- mate termination of the litigation, the court shall so state in writing, identifying the ques- tion of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court's own motion or on mo- tion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order." 155 Ill. 2d R. 308(a). "May a national class be certified under Section 2-801 of the Code of Civil Procedure where: (1) the class action complaint alleges a national class, (2) the Court assumes there are sufficient class members outside Illinois to satisfy the numerosity requirement, but (3) there are only two remaining Illinois residents who are members of the class? On August 30, 1993, Arriola filed a complaint individually and
on behalf of a class of other similarly situated individuals
alleging that Time intentionally misrepresented its right to
subrogation in the absence of an express policy provision
establishing such a right. In its answer, Time denied the
allegations of the complaint and denied that plaintiff was entitled
to an order certifying this case as a class action. The record
indicates that Time subsequently acknowledged that a medical insurer
has no right of subrogation in the absence of an express policy
provision allowing subrogation. This was the holding in Schultz v.
Gotlund, 138 Ill. 2d 171, 561 N.E.2d 652 (1990), decided September
26, 1990. Arriola correctly points out that Time first began to seek
subrogation from its insureds only after the Schultz decision was handed down. After this class action complaint was filed, the trial
court limited discovery to potential members of the class who
resided in Illinois. Time subsequently proceeded to attempt to
reimburse the 46 Illinois policyholders from whom it had sought and
received subrogation payments since September 1990, including
Arriola. Time obtained releases from 44 of the 46 policyholders. There is a split in the authorities as to the scope of review
of an appeal under Rule 308 as it relates to certified questions.
One view is that review is strictly limited to the question
identified by the circuit court order and will not be expanded on
appeal to encompass other matters that could have been included but
were not. Levy v. Markal Sales Corp., 311 Ill. App. 3d 552, 724 N.E.2d 1008 (2000). Another view is that the appellate court is not
limited to reviewing the question presented but may also consider
the appropriateness of the order giving rise to the appeal.
Billerbeck v. Caterpillar Tractor Co., 292 Ill. App. 3d 350, 685 N.E.2d 1018 (1997), appeal denied, 176 Ill. 2d 570, 690 N.E.2d 1379
(1998). Our supreme court recently addressed this issue, finding it
appropriate not to answer a certified question where the record
revealed that there were disputed questions of fact. Dowd & Dowd,
Ltd. v. Gleason, 181 Ill. 2d 460, 469-70, 693 N.E.2d 358 (1998).
The court held that under those circumstances, any answer the court
gave would be "advisory and provisional." This court addressed the scope of review of a certified
question in the context of a multi-state class action suit in Gordon
v. Boden, 224 Ill. App. 3d 195, 586 N.E.2d 461 (1991). There, the
plaintiffs alleged that the defendant companies had sold orange
juice which had been watered down and contained additives to the
point that the product was only 60% orange juice. The trial court
certified as a class all persons in the United States who had
purchased the adulterated orange juice products manufactured or sold
by the defendants. Gordon, 224 Ill. App. 3d at 198. The trial court
also certified a question that pertained to the assessment and
distribution of damages among the class members, who could number in
the millions. This court concluded that we would need to address
the question of the propriety of the class certification as well as
the certified question, because "[w]e cannot neatly compartmentalize
and independently resolve one issue and not the other." Gordon, 224
Ill. App. 3d at 199. Based on the facts of the case sub judice, we
are similarly compelled to expand our review beyond the certified
question. Commentators have noted that multi-state class actions place a
tremendous administrative burden on the state's court system, the
state's taxpayers, and also upon the absent class members who would
be bound by an Illinois judgment. R. Foster, Multi-State Consumer
Class Actions in the Illinois Courts, 84 Ill. B.J. 418 (1996).
However, no procedural mechanism exists for the joinder of claimants
in multiple states other than a multi-state class action. Section
2-801 of the Illinois Code of Civil Procedure (735 ILCS 5/2-801 West
1998) governs class action suits in Illinois. It provides: § 2-801. Prerequisites for the maintenance of a class action. An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representa- tive party of the class only if the court finds: of all members is impracticable. (2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members. (3) The representative parties will fairly and adequately protect the interest of the class. for the fair and efficient adjudication of the controversy." 735 ILCS 5/2-801 (West 1998). In Miner v. Gillette Co., 87 Ill. 2d 7, 428 N.E.2d 478 (1981),
our supreme court held that Illinois courts may hear multi-state
class action suits. The court reversed the appellate court and
trial court's refusal to certify a nationwide class based on a
purported violation of due process. The court held that any due
process concerns arising from an Illinois court's exercise of
jurisdiction over non-Illinois class members would be obviated by
proper notice and the "adequate representation" requirement of
Section 2-801(3): "'Because a class action must necessarily proceed in the absence of almost every class member, we hold the residential makeup of the class member- ship is not controlling. [Citation.] What is im- portant is that the nonresident plaintiffs be given notice and an opportunity to be heard and that their rights be justly protected by adequate representation. These are the essential requirements of due process, and they must be satisfied in any class action by every court, state or federal, regardless of the residences of the absent class members. Therefore, *** the element necessary to the exercise of jurisdiction over nonresident plaintiff class members is procedural due process. (Emphasis omitted.)'" Miner, 87 Ill. 2d at 12-13, quoting Shutts v. Phillips Petroleum Co., 222 Kan. 527, 542-43, 567 P.2d 1292, 1305 (1977), cert denied: 434 U.S. 1068, 98 S. Ct. 1246, 55 L. Ed. 2d 769 (1978). Time acknowledges the holding in Miner but argues that Miner is
inapplicable as there was a large subclass of Illinois residents in the class in Miner and, in this case, there are only two
potential class members who reside in Illinois. Of course, this is
true only because Time made a tender of settlement to the entire
Illinois subclass and almost all of the members of the subclass
accepted that tender. Throughout the proceedings below and in both appeals, Arriola
has argued that Time's actions in obtaining general releases from 44
of the 46 affected policyholders in Illinois were an effort to avoid
liability to the larger group of affected policyholders in other
states. Accepting this argument as being true, it begs the question
of whether Time's actions were proper and, whether or not they were
proper, what effect does Time's tender to the named plaintiff and
settlements with almost all of the prospective class members in
Illinois have on this case? In his reply brief, Arriola asserts:
"Whether a defendant's effort to obtain releases from putative class
members amounts to impermissible misconduct depends upon the
specific facts of the effort which, in this case, are unknown
because of the discovery limitation. See e.g. Fraley v. Williams
Ford Tractor & Equiq., 339 Ark. 322, 5 S.W.3d 423 (1999)
(collecting cases)." We find Fraley to be inapposite. There, the defendant
contacted putative class members and obtained releases from many of
them. This was done after the plaintiffs had filed a motion for
class certification but before the motion was heard. All of the
putative class members who signed releases were indebted to the
defendant for vehicle and farm equipment loans and only two or three
received money from the defendant in exchange for signing the
releases. Fraley v. Williams Ford Tractor & Equipment Co., 339 Ark.
322, 334, 5 S.W.3d 423, 435-36 (1999). There was evidence that the
defendant made misrepresentations in obtaining the releases. The
Arkansas Supreme Court held that communications between defendants
and plaintiffs in class action cases that are likely to
substantially reduce member participation or that indicate a
likelihood of coercion should be restricted or prohibited when
brought to the attention of the trial court. The court held that
the circumstances surrounding the attainment of the releases
indicated there was a likelihood of coercion, and the trial court
abused its discretion in considering the releases in determining
whether the numerosity requirement had been met. Fraley, 339 Ark.
At 340, 5 S.W.3d at 436. In our case, plaintiff does not question the validity of the
releases obtained by Time. There is no evidence that any of the
putative class members who signed releases were indebted to Time or
that Time had any influence of any kind over them. There was also
no evidence that Time made misrepresentations in obtaining the
releases. This court's research reveals that Illinois has long recognized
that, prior to class certification, settlements with persons falling
within a proposed class are not prohibited. In Jankousky v. Jewel
Cos., 182 Ill. App. 3d 763, 538 N.E.2d 689 (1989), the plaintiffs
had signed releases after settling with Jewel in regard to a
salmonella outbreak in the Chicagoland area. The plaintiffs alleged
that the defendant had fraudulently concealed information
concerning the pendency of the class action suit of which they were
potential members. In affirming the trial court's dismissal of
plaintiffs' action, this court held: "There is no prohibition
against communications, negotiations, or settlements with persons
who fall within the proposed class prior to class certification.
The only limitation in such situations is when the settlements
affect the rights of the nonsettling class members. (Weight
Watchers of Philadelphia, Inc. v. Weight Watchers International,
Inc. (2d Cir. 1972), 455 F.2d 770, 775; Vernon J. Rockler & Co.
Minneapolis Shareholders Co. (D. Minn 1977), 425 F. Supp. 145, 149-50.)" Jankousky v. Jewel Cos., 182 Ill. App. 3d at 767. In Weight Watchers, the court of appeals reviewed a district
court's order allowing the defendant franchisor the right to
communicate and settle with its franchisees who were potential
members of a class where the plaintiff was the named representative.
The court held that the defendant could seek settlements with
individual potential class members even if the cumulative result of
the settlements was that a class action was no longer maintainable
due to an insufficient number of remaining class members. Weight
Watchers of Philadelphia, Inc. v. Weight Watchers International,
Inc., 455 F.2d 770, 775 (2d Cir. 1972) In Wheatley v. Board
of Education of Township High School District 205, 99 Ill. 2d 481,
459 N.E.2d 1364 (1984), two teachers who had been terminated from
their employment filed a class action suit against the school board
on behalf of all teachers similarly situated. After the named
plaintiffs and a majority of the other discharged teachers had been
offered and accepted reemployment, the board moved for dismissal.
The trial court granted the dismissal, holding that the action was
moot. Wheatley, 99 Ill. 2d at 483-84. On appeal, the appellate
court reversed, holding that the case was not moot because relief
could still be granted to the teachers who had not been offered
reemployment. In affirming the dismissal, our supreme court
concluded that the named plaintiffs could not maintain the action
because they were no longer proper class representatives and no
remaining class member had moved to substitute himself as a named
representative. Wheatley, 99 Ill. 2d at 486-87. As here, the named
plaintiffs in Wheatley had not filed a motion for class
certification prior to being tendered the relief they sought. This court recently followed Wheatley in Yu v. International
Business Machines Corp., 314 Ill. App. 3d 892, 732 N.E.2d 1173
(2000). There, plaintiff had bought a computer system from the
defendants after being assured that the system was "Y2K compliant."
Upon learning that the computer system required an expensive upgrade
to make it "Y2K compliant," plaintiff filed a class action suit
against the defendants on behalf of all purchasers of the particular
computer system. The defendants upgraded the plaintiff's computer
system at no charge after the class action suit was filed but before
plaintiff moved for class certification. This court affirmed the
dismissal of the suit, finding that the plaintiff was no longer an
appropriate representative of the interests of the class. "'"If none
of the named plaintiffs purporting to represent a class establishes
the requisite of a case or controversy with the defendants, none may
seek relief on behalf of himself or any other member of the
class."'" Magnuson v. City of Hickory Hills, 933 F.2d 562, 565 (7th
Cir. 1991), quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674, 682 (1974)." Yu, 314 Ill. App. 3d
at 898-99. Unlike the named plaintiffs in Jankousky, Wheatley and Yu,
Arriola never accepted the tender made by Time. "'Tender' is an
unconditional offer of payment consisting of the actual production
of a sum not less than the amount due on a particular obligation, and
tender must be without conditions to which the creditor can have a
valid objection or which will be prejudicial to his rights." Brown
& Kerr, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d
1023, 1032, 715 N.E.2d 804 (1999). "A party who receives all that
he has sought generally is not aggrieved by the judgment affording
the relief and cannot appeal from it." Deposit Guaranty National
Bank v. Roper, 445 U.S. 326, 333, 100 S. Ct. 1166, 1171, 63 L. Ed. 2d 427, 436 (1980), citing Public Service Comm'n v. Brashear Freight
Lines, Inc., 306 U.S. 204, 59 S. Ct. 480, 83 L. Ed. 608 (1939). This court recently addressed the question of the effect of an
unaccepted tender in the context of a class action suit in
Hillenbrand v. Meyer Medical Group, S.C., 308 Ill. App. 3d 381, 720 N.E.2d 287 (1999). There, we held that no controversy exists between
parties when the defendant tenders the payment requested by the
plaintiff, plus interest. "The plaintiffs cannot perpetuate the
controversy by merely refusing Meyer's tender." Hillenbrand, 308
Ill. App. 3d at 389. Consequently, the payment tendered by Meyer made
the plaintiffs' individual claims moot even though they did not
accept it. The court in Hillenbrand addressed a situation in which the
defendant's tender to the plaintiffs occurred prior to class
certification, but while a motion for certification was pending.
The court held that when a motion for class certification has been
pursued with reasonable diligence and is pending in court, a case
does not become moot merely because of the tender to the named
plaintiffs of their individual money damages. Under those
circumstances, the trial court is obligated to rule on the pending
motion for class certification before considering the effect of the
defendant's tender of the named plaintiff's individual claims. "To
hold otherwise would allow a party to avoid ever defending a class
action suit by simply tendering payment to the named plaintiffs, in
each class action filed against it, prior to the trial court's
ruling on their motion for class certification." Hillenbrand, 308
Ill. App. 3d at 389-90, adopting Susman v. Lincoln American Corp.,
587 F.2d 866, 870 (7th Cir, 1978), cert. denied, 445 U.S. 942, 100 S. Ct. 1336, 63 L. Ed. 2d 775 (1980). The court also held that the
plaintiffs were not entitled to conduct discovery in order to
determine the identity of other class members or representatives.
Hillenbrand, 308 Ill. App. 3d at 392. In Susman, the defendant tendered payment to the named class
representatives during the pendency of the plaintiff's motion for
class certification. The named plaintiffs refused the tender but
the district court dismissed the class action complaints as being
moot. In reversing the dismissal, the court of appeals pointed out
that, in addition to the interests of the named plaintiffs, "the
interests of the unnamed class members are before the court during
the pendency of a motion for class certification." Susman, 587 F.2d
at 869. Because of this, "when a motion for class certification has
been pursued with reasonable diligence and is then pending before
the district court, a case does not become moot merely because of
the tender to the named plaintiffs of their individual money
damages. The district court *** should hear and decide that motion
prior to deciding whether or not the case is mooted by the tender."
Susman, 587 F.2d at 870. In Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980), the defendant made an
unaccepted tender offer, in settlement of the individual putative
representatives' claims after the district court denied the
plaintiffs' motion to certify the class. The district court entered
judgment in favor of the plaintiffs, over their objections, and then
dismissed the action. The federal court of appeals reversed. The
Supreme Court granted certiorari, limited to the question of
mootness. "We begin by identifying the interests to be considered when questions touching on justiciability are presented in the class- action context. First is the interest of the named plaintiffs: their personal stake in the substantive controversy and their related right as litigants in a federal court to employ in appropriate circumstances the procedural device of a Rule 23 class action to pursue their individual claims. A separate consideration, distinct from their private interests, is the responsibility of named plaintiffs to represent the collective interests of the putative class. Two other interests are implicated: the rights of putative class members as potential intervenors, and the responsibilities of a district court to protect both the absent class and the integrity of the judicial process by monitoring the actions of the parties before it." Roper, 445 U.S. at 331, 100 S. Ct. at 1170, 63 L. Ed. 2d at 435. The Court then held that the named plaintiffs' "individual
interest in the litigation - as distinguished from whatever may be
their representative responsibilities to the putative class - is
sufficient to permit their appeal of the adverse certification
ruling." (Emphasis omitted.) Roper, 445 U.S. at 340, 100 S. Ct. at
1175, 63 L. Ed. 2d at 440. From these cases, it can be seen that whether a motion to
certify a class has been filed is an important consideration in
determining the effect a tender offer has on a class action suit.
Section 2-802(a) of the Code of Civil Procedure provides that "[a]s
soon as practicable after the commencement of an action brought as
a class action, the court shall determine by order whether it may be
so maintained." 735 ILCS 5/2-802(a)(West 1998). This language
mirrors that of Federal Rule of Civil Procedure 23 (c)(1). Case law
also requires that motions to certify a class be filed
expeditiously, especially in cases where the named representatives'
claims may become moot. "Prompt decision one way or the other is
imperative not only so that the parties know whose interests are at
issue but also so that representative plaintiffs with live claims
may be substituted for those whose claims have become moot." Nelson
v. Murphy, 44 F.3d 497, 500 (7th Cir. 1995). "'As soon as practicable' does not mean *** that a court [must]
delay ruling on a motion to dismiss until after it has ruled on the
issue of class certification." Dixon v. Mercury Finance Co., 296
Ill. App. 3d 353, 360, 694 N.E.2d 693 (1998), citing Schlessinger v.
Olsen, 86 Ill. 2d 314, 320, 427 N.E.2d 122 (1981). In Dixon, the
plaintiffs delayed moving for class certification until after the
defendants had made a number of motions, including one for summary
judgment. Summary judgment was entered after the plaintiffs filed a
motion for class certification but before the trial court ruled on
that motion. The appellate court affirmed the trial court's order
granting the defendant's motion for summary judgment. The appellate
court reasoned that the plaintiffs suffered no prejudice from this
procedure because, if the appellate court were to reverse the
summary judgment order, plaintiffs could still move to certify a
class. Dixon, 296 Ill. App. 3d at 361. The opinion in Lusardi v. Xerox Corp., 975 F.2d 964 (3d Cir.
1992), has an excellent discussion of the evolution of the mootness
doctrine in the context of class action suits. The "relation back"
doctrine is an exception to the mootness rule and it is applicable
to transitory claims. "Some claims are so inherently transitory
that the trial court will not have even enough time to rule on a
motion for class certification before the proposed representative's
individual interest expires." United States Parole Comm'n v.
Geraghty, 445 U.S. 388, 399, 100 S. Ct. 1202, 1210, 63 L. Ed. 2d 479, 492 (1980), citing Gerstein v. Pugh, 420 U.S. 103, 110 n.11, 95 S. Ct. 854, 861 n.11, 43 L. Ed. 2d 54, 63 n.11 (1975). Under these
circumstances, a trial court may decide an outstanding class
certification motion even though the named plaintiff no longer has
a live individual claim. Geraghty was decided contemporaneously
with Roper. After discussing Geraghty, the Lusardi opinion went on: "Roper injected concerns about claims that, while not expiring naturally, were deliberately mooted by defendants who could afford to 'pick off' successive plaintiffs and forestall the formation of a class. Combining these innovations, some courts extended the 'relation back' doctrine to situations where the individual claims became moot due to tender of full settlement before the district court was reasonably able to reach the class certification question. See, e.g., Wilson v. Secretary of Health & Human Servs., 671 F.2d 673, 679 (1st Cir. 1982); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981); Susman v. Lincoln American Corp., 587 F.2d 866, 870 (7th Cir. 1978), cert. denied, 445 U.S. 942, 100 S. Ct. 1336, 1337, 63 L. Ed. 2d 775 (1980). As the Seventh Circuit explained, '[J]ust as necessity required the development of the relation back doctrine in cases where the underlying factual situation naturally changes so rapidly that the courts cannot keep up, so necessity compels a similar result [where defendants tender full amount of recovery to individual plaintiffs while the motion for certification is still pending.]' Susman, 587 F.2d at 870; see also Zeidman, 651 F.2d at 1050 (noting that tender to successive named plaintiffs by a wealthy defendant could, as a practical matter, make a decision on class certification just as difficult to produce as it was in Gerstein)." Lusardi, 975 F.2d at 982. The Lusardi court pointed out that all of the cases cited
"still require the named plaintiff to have a personal stake when the
class certification motion at issue was filed. Just as appellate
review may relate back to an adverse certification decision made
when plaintiffs had a live claim, so district court review of a
pending certification motion relates back to its filing, if
plaintiff had a live claim at that time." (Emphasis added.) Lusardi,
975 F.2d at 982. The defendant in Lusardi had tendered the named
representative the individual damages he had sought and he accepted
the tender prior to filing a motion for class certification. The
court of appeals held that the district court correctly dismissed
the motion for class certification "even if Xerox engaged in
deliberate efforts to prevent class formation." Lusardi, 975 F.2d
at 982 n.31. "Without a rule that plaintiff have a live claim at
least when the motion to certify is filed, the 'case or controversy'
requirement would be almost completely eviscerated in the class
action context, since almost anybody might be deemed to have
standing to move to certify a class." Lusardi, 975 F.2d at 983. Wheatley, Jankousky, Yu and Lusardi all held that when a named
plaintiff accepts the tender, he no longer is a proper
representative of the class and the class action is dismissed unless
a new named representative is substituted. These cases also show
that, in the absence of a court order to the contrary, it is
permissible for defendants to tender full amount of recovery to
named plaintiffs and putative members of the class prior to the
filing of a motion for class certification. This is true even if
the purpose behind making the tender is to prevent class formation.
The fact that, in the case sub judice, Time made a tender to the
entire subclass rather than only to the named representative does
not change our analysis. The analysis is different in cases where a motion for class
certification has been filed. If the named representative's claims
become moot after the motion for class certification has been
granted, the case is not moot as to the remaining class members.
Franks v. Bowman Transportation Co., 424 U.S. 747, 755-56, 96 S. Ct. 1251, 1259-60, 47 L. Ed. 2d 444, 456-57 (1976). If, after a named
representative's motion for class certification has been denied,
judgment is entered in his favor after he has rejected tender, he
may still appeal the denial of his motion for class certification.
Roper, 445 U.S. at 332-36, 100 S. Ct. at 1170-73, 63 L. Ed. 2d at
435-38. If a defendant tenders full amount of recovery to a named
representative while a motion for class certification is pending,
and that motion has been pursued with reasonable diligence, the
trial court must still rule on the motion for class certification.
Hillenbrand, 308 Ill. App. 3d at 391-92; Susman, 587 F.2d at 870.
"These [last two] exceptions (in Roper and Susman) to the general
mootness rule are intended to ensure proper resolution of any
certification motion filed at a time when the named plaintiff's own
claims were still at issue." Lusardi, 975 F.2d at 975. None of the above three exceptions to the mootness doctrine
applies to plaintiff. In the present case, plaintiff never filed a
motion for class certification. The defendant filed a motion to
dismiss more than 14 months after the complaint was filed. The
trial court granted this motion more than 20 months after the
complaint was filed. Taking all of the above into consideration, it is clear that
the instant plaintiff has not pursued a motion for class
certification with reasonable diligence. While Hillenbrand, Susman
and Roper allow plaintiffs who have refused tenders of full
settlement to appeal orders dismissing class action suits to do so,
plaintiff must have filed a motion for class certification and
pursued it with reasonable diligence. We hold that plaintiff did
not do this. Therefore, when defendant tendered plaintiff's
recoverable monetary damages, plaintiff's right to proceed in this
matter as a class action became moot. Hillenbrand, 308 Ill. App. 3d
at 391-92. Consequently, he is no longer a proper class representative.
Lusardi, 975 F.2d at 984. As Arriola has not established the
requisite of a case or controversy with Time, he may not seek relief
on behalf of any other member of the class. Yu, 314 Ill. App. 3d at
898-99. As no remaining class member has moved to substitute
himself as a named representative, the class action claims are
dismissed. Wheatley, 99 Ill. 2d at 486-87. Our holding in this case is largely based on the failure of the
plaintiff to file a motion to certify a class and the lengthy delay
between (1) the day the complaint was filed (August 30, 1993), (2)
the day defendant filed the motion to dismiss (November 4, 1994),
and (3) the day the trial court granted that motion (May 15, 1995).
Had the defendant tendered payment to the named plaintiff early in
the litigation and then sought to dismiss this action, the result
could have been very different. As the Supreme Court held in Roper,
one of the interests to be considered by courts when presented with
a question concerning justiciability in a class action case is "the
responsibilities of a district court to protect both the absent
class and the integrity of the judicial process by monitoring the
actions of the parties before it." Roper, 445 U.S. at 331, 63 L. Ed. 2d at 435, 100 S. Ct. at 117. Under this precept, if a defendant in a class action case were
to tender the full amount of recovery to the named plaintiff before
the court has had a reasonable opportunity to consider and decide a
motion for certification, the court would have the authority to deny
a motion to dismiss based on the unaccepted tender. The court could
then proceed to determine the issue of class certification at the
appropriate time. As the court said in Susman: "If the class action
device is to work, the courts must have a reasonable opportunity to
consider and decide a motion for certification." Susman, 587 F.2d
at 870. It is implicit in this holding that the plaintiff must have
a reasonable opportunity to file a motion for certification. The
trial court in the instant case had a great deal of time in which to
consider a motion for certification, had one been filed. As
defendant tendered plaintiff the recoverable monetary damages he
sought prior to plaintiff filing a motion to certify the class, we
remand this matter to the trial court to determine the plaintiff's
individual damages, confined to $554.40 plus interest from the date
plaintiff sent that amount to Time to the date Time tendered that
amount to plaintiff. We find that plaintiff is not entitled to
recover costs or attorney fees for the reasons stated in
Hillenbrand, 308 Ill. App. 3d at 389-90. Finally, based on the facts of this case and the foregoing
analysis, we answer the certified question in the negative as it
applies to this particular case. However, we do not answer the
question of whether a named representative in a multi-state class
action suit filed in Illinois must demonstrate the existence of an
Illinois subclass sufficiently numerous to meet the numerosity
prerequisites of section 2-801 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-801 (West 1998)) in order to have a national
class certified. Under the circumstances present here, we find that
it is appropriate to not answer the certified question as any answer
we give would be "advisory and provisional." Dowd & Dowd, Ltd. v.
Gleason, 181 Ill. 2d at 469-70. The answer to this question is best
left for another day and another case. Dismissed in part and remanded in part. GREIMAN, and THEIS, JJ., concur
Upon remand, the trial court certified the issue as follows:
This court granted plaintiff's application for leave to appeal.
The following are the pertinent facts contained in the record.
Plaintiff Richard Arriola, an Illinois resident, was injured in an
auto accident in 1992. At the time of the accident, Arriola was
named as an insured on a policy issued by Time. Arriola recovered
$554.40 for medical expenses from Time under the aforementioned
policy. Arriola proceeded to file a complaint against the person
responsible for the accident. Time contemporaneously notified
Arriola of its subrogation lien for $554.40 with respect to any
judgment or any settlement arising from that action. Arriola
ultimately tendered a check to Time for $554.40.
"(1) The class is so numerous that joinder
(4) The class action is an appropriate method
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