Bemis v. Safeco Ins. Co. of America et al.,  No. 09-315, 2009 WL 1972169 (S.D. Ill. Jul. 8, 2009). 

Yes, we are still…in the second half of 2009… seeing new remand opinions addressing whether a lawsuit was commenced before CAFA’s enactment on February 18, 2005. [Really Safeco? You really tried that?!?] And oddly enough, three of the eight commencement cases summaries we have posted in 2009 have involved chiropractor claims against insurers. (Editors’ Note: See the CAFA Law Blog analysis of Komeshak posted on August 14, 2009 and Fischer posted on June 5, 2009.) Really. 

In Bemis v. Safeco Ins. Co. of America et al., chiropractor Bemis filed a lawsuit waaaaaay back on February 11, 2005, seven days pre-CAFA, alleging on behalf of his assignor/patient and a putative class of insureds that Safeco had established a scheme to short pay for medical care rendered to its insureds. Bemis (we have been unable to verify that his partner is known as Butthead and that before they were chiropractors they had a show on MTV) initially sued two Safeco entities, only one of which was not an Illinois citizen, in Illinois state court, alleging solely state law claims. Years later, on March 25, 2009, the state court finally certified the class. Safeco promptly removed, claiming the existence of diversity jurisdiction under CAFA. Really Safeco?

Under CAFA commencement case law, if a post-CAFA change to a lawsuit does not relate back to the initial pre-CAFA suit, the case may be eligible for removal under CAFA. If it does relate back, then there’s no CAFA jurisdiction. Safeco claimed the class definition, which included insureds and their assigns of Safeco and its affiliated companies expanded the claims articulated in the petition enough to constitute a claim sufficiently independent of the original contentions that it should be treated as fresh litigation.   Really?!

Were you not aware of the liberal relation back standard employed by Illinois courts, similar to the federal standard, which permits relation back “if the new allegations as compared with the timely filed allegations show that the events alleged were close in time and subject matter and led to the same injury” where a defendant has “adequate notice and knowledge of the incident giving rise to the lawsuit”?

Did you really think the court would not see the “[t]his is a case about a scheme by [Safeco] and its Safeco insurer affiliates” language in the opening paragraph of the 2005 petition? Really? 

Did you really think you could convince the court you did not have adequate notice and knowledge that the plaintiff was pursuing claims against Safeco affiliates? Because maybe if you did, you should not have filed that motion to dismiss allegations against one of the Safeco entities, in which you argued that the only means to hold it liable for transactions between it and its “affiliated companies” was to pierce the corporate veil. Or maybe you did not think anyone would mention the 2006 hearing on the motion to compel discovery regarding Safeco affiliates? Really? REALLY? 

Yeah, that’s what we thought. Needless to say, the federal court remanded this one to state court.