Avery v. State Farm Mutual Automobile Insurance

JUSTICE FREEMAN, concurring in part and dissenting in part:

I agree with my colleagues with respect to some, but not all, of the issues raised in this appeal. Apart from my disagreement on these legal matters, I am troubled by the tone and tenor of today’s opinion. I, therefore, write separately to explain my views.

I. BREACH OF CONTRACT

The court reverses the jury verdict in favor of the plaintiff class outright, based on several different rationales. I agree with two major points. First, I concur in the judgment that the nationwide class certification cannot stand. While I disagree with the court’s analysis, I believe its conclusion is correct. Further, although the court rightly concludes that the “specification” damages have no basis in law, thus necessitating reversal, I cannot completely join in this portion of the court’s opinion because of some unnecessary dicta.

Notwithstanding the above, I respectfully disagree with the remainder of the court’s conclusions on the breach of contract claim, and dissent therefrom. As I will explain, the court errs in its conclusion that plaintiffs cannot prove a breach of any of the various insurance policies in effect during the class period. Moreover, I do not believe that the jury engaged in improper speculation in awarding installation damages, such as would necessitate this court stepping in and overruling the jury verdict.

A. Nationwide Certification

The court concludes that nationwide certification was erroneous because the various contracts State Farm uses in different states cannot all be interpreted as promising the same thing. Although I agree with the ultimate result reached by my colleagues — I, too, would find that the circuit court erred in certifying the nationwide class — I disagree with the court’s reasoning.

As an initial matter, the court’s analysis with respect to this issue is plagued by inconsistencies. For example, the court criticizes the circuit court’s conclusion that there is a unitary contractual promise, noting that the various contracts contain different language and that there is no evidence to support the conclusion that the language is irrelevant to determining State Farm’s obligations to its insureds. See 216 Ill. 2d at 134-35. The court specifically holds that the “like kind and quality” policy form and the “pre-loss condition” form “are not the same.” (Emphasis in original.) 216 Ill. 2d at 130. But later, the court inexplicably accepts State Farm’s argument that “[t]he term ‘like kind and quality,’ as used in the relevant policies, meant ‘sufficient to restore a vehicle to its pre-loss condition.’ ” 216 Ill. 2d at 144. In other words, despite what the court said earlier, it ultimately concludes that the promises in the two contracts are the same. If the promises are the same, then any differences between the forms are irrelevant.

In another example of inconsistency, the court states that the circuit court should have ruled before trial on the issue of whether State Farm’s various contract forms had a unitary promise. 216 Ill. 2d at 127. However, when it comes to reviewing the lower courts’ rulings, the court holds that “there is simply no evidentiary support for the lower courts’ conclusion that” there is a unitary promise. (Emphasis added.) 216 Ill. 2d at 134. The evidentiary support the court considers but finds wanting consists, of course, of information adduced at trial. See 216 Ill. 2d at 132-35. This is clearly inconsistent with the earlier statement that the circuit court ought to have decided the issue before trial began, in light of the fact that the court is — quite properly, in my mind — willing to entertain the possibility that evidence adduced at trial could demonstrate that State Farm had a common obligation to all of its policyholders, regardless of variations in the contracts State Farm drafted.

Moreover, the court’s rejection of the evidence adduced at trial — specifically, the testimony of Don Porter— cannot withstand scrutiny. First, I note that the court characterizes Porter as “a State Farm property consultant in auto general claims.” 216 Ill. 2d at 119. This description connotes that Porter is the equivalent of a lower level employee. In reality, Porter, a State Farm witness, worked at the State Farm home office in Blooming-ton as one of only 19 State Farm “property consultants” in the entire nation. At the time of trial, he had been a State Farm employee for 21 years. Porter specifically testified that he was “here to testify to what we do as an organization and what I know that my comrades do when we talk about the use of these parts.”

Porter testified, as the court admits, that State Farm had a uniform nationwide practice: “ ‘restoring the vehicle to its pre-loss condition.’ ” 216 Ill. 2d at 120. The court, however, determines that it may ignore this testimony because Porter did not specifically refer to each and every form of contract which State Farm used. I do not believe that the court is respecting the standard of review. Had Porter testified that he arranged his bookshelves in alphabetical order by title, we would not refuse to accord this testimony weight because he did not specifically testify that he placed Moby Dick before Wuthering Heights. Porter was no neophyte, and he was testifying to the practices of State Farm “as an organization.” His testimony cannot be brushed away on the basis that he might not have been talking about State Farm as a whole.

The court also interprets Porter’s testimony in the light least favorable to the result reached by the circuit court, stating that his general testimony regarding State Farm’s practices related only to State Farm’s “philosophy,” and not its contractual obligations. In other words, the court overrules the circuit court because although State Farm might have had a nationwide “philosophy,” its various policies might have promised less — i.e., State Farm might as a matter of “philosophy” give its policyholders more than the benefits for which they have paid. Although it might make a nice sound bite for State Farm’s advertisements, this is simply conjecture, not a valid basis for overruling the circuit court. We must defer to the circuit court’s interpretation of testimony unless it is clearly erroneous. That standard clearly has not been reached here. At best, the court is suggesting another possible interpretation of the testimony at issue and substituting its judgment for the circuit court’s. This is not a reviewing court’s role. Porter, during his testimony, made a general, categorical statement that State Farm had an overarching consistent obligation. As the court admits, Porter knew that State Farm had several differently worded policies; it is not as if he were unaware that State Farm chose to use different language in its policies in different states. Nevertheless, he testified that its obligation was everywhere the same.

The court also makes much of Porter’s numerous self-serving statements that State Farm’s only intent was to restore its insureds’ vehicles to their “pre-loss condition.” (Indeed, Porter repeated this phrase no less than 26 times during the course of his testimony.) But sometimes, another answer slipped through. For instance, when asked whether State Farm treated all insureds “equally with respect to specifying non-OEM crash parts,” Porter testified, “In my experience, we do. It doesn’t make any difference the age of the vehicle, the type of the vehicle.” (Emphasis added.) This cuts against the court’s argument that State Farm’s obligation depends on the preloss condition of every individual vehicle, as a vehicle’s age is a component of its preloss condition. At another point, counsel for State Farm asked Porter to supply his definition of “the term ‘non-OEM part.’ ” He responded:

“Well, a non-OEM part to me is a part that’s made by other than the original manufacturer. And, you know, but it simply to me, is you buy a part from Ford and if the Ford fender was made by Ford, but you can buy that fender that’s — that’s originally produced by Ford by another manufacturing firm that has produced the same type of fender or fenders as good as the fender that was the OEM fender.” (Emphasis added.)

Here Porter clearly testified that non-OEM parts had to be as good as OEM parts.

On cross-examination, Porter was asked about a confidential internal State Farm memorandum, titled General Claims Memorandum (GCM) #430 (I will return to this document later). Porter admitted that this document required that non-OEM parts “must be of OEM quality.” Plaintiffs’ counsel subsequently posed the following question to Porter, and received the following response:

“Q. Yes, sir. Now, is there a guarantee to — anywhere else other than this general claims memo that guarantees that these parts will be made out of the same construction and have the same structural integrity as the OEM parts?

A. You know, sir, I would have to say that, yes, it does after all because it says quality replacement part, and when we say quality replacement part, we mean those parts that are as good as the parts that were on the vehicle at the time of the loss.” (Emphases added.)

Porter here made clear that the term “quality replacement part,” which meant “parts that are as good as the parts that were on the vehicle at the time of the loss,” was a guarantee of OEM quality. Thus, here, Porter equated the guarantee to restore the vehicle to preloss condition with a guarantee of OEM-quality replacement parts. This telling admission wholly undermines the court’s theory that preloss condition destroys commonality, because if preloss condition means OEM quality, then a vehicle cannot he restored to preloss condition with a part which falls short of OEM quality, and thus individual examinations of plaintiffs’ vehicles is not necessary if, as the jury concluded, all non-OEM parts are of lesser quality than OEM parts. 14

The jury was entitled to believe Porter’s admissions in plaintiffs’ favor over his constant repetition of a term favoring State Farm, his long-term employer. The court’s proffered reasons for disregarding Porter’s testimony are simply untenable.

The court’s treatment of Porter’s testimony, moreover, is not an isolated event. I am troubled by the court’s consideration — or more appropriately its lack of consideration — of the evidence adduced at trial. This case comes before this court on appeal from a trial which lasted more than seven weeks — 50 days elapsed between opening statements on August 16, 1999, and the jury’s October 4 verdict. Over the course of the trial, 81 witnesses testified, with the circuit court admitting into evidence well over 200 exhibits. Before the case even went to trial, there were over two years of pretrial proceedings between the filing of plaintiffs’ original class action complaint in July 1997 and the August 1999 beginning of trial. The common law record alone runs to more than 30,000 pages of filings. And yet, in an 81-page opinion, the court devotes less than two full pages to its initial recitation of the facts. It concerns me, as it ought to concern anyone, to see that the actual evidence adduced in this case is given such short shrift.

As I stated at the outset of this separate opinion, however, I do ultimately agree with my colleagues that the nationwide class cannot stand. Initially, I believe that the circuit court abused its discretion in applying Illinois law to the contracts between State Farm and non-Illinois residents. Illinois follows the Restatement (Second) of Conflict of Laws in making choice-of-law decisions. Morris B. Chapman & Associates, Ltd. v. Kitzman, 193 Ill. 2d 560, 568 (2000). The Restatement provides that when the parties have not made an effective choice of law, the factors of possible relevance to choice of law in breach of contract cases are

“(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties,”

which are to be “evaluated according to their relative importance with respect to the particular issue.” Restatement (Second) of Conflict of Laws § 188, at 575 (1971). In the context of insurance contracts,

“[T]he rights created thereby are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship *** to the transaction and the parties, in which event the local law of the other state will be applied.” Restatement (Second) of Conflict of Laws § 193, at 610 (1971).

Accord Westchester Fire Insurance Co. v. G. Heileman Brewing Co., 321 Ill. App. 3d 622, 630-31 (2000). With respect to automobile insurance contracts, the “principal location of the insured risk” is that location in which the vehicle is to be garaged during most of the insurance policy’s term. Restatement (Second) of Conflict of Laws § 193, Comment b, at 611 (1971).

Of the above factors, the only one which would appear to militate in favor of applying Illinois law to the out-of-state contracts is the fact that State Farm is an Illinois resident. The most important factor, the location of the insured risks — the insureds’ vehicles — would cut against application of Illinois law. The contracts would not have been delivered in Illinois. The insureds would not be domiciled in Illinois. And the last act to give rise to a valid contract — either the insureds’ signatures or the deposit of checks in the mail — most likely would not have occurred in Illinois. Consideration of the relevant factors would appear to militate strongly against applying Illinois law to the entire multistate class in this case.

Moreover, even if the fact of State Farm’s Illinois domicile sufficed to uphold application of Illinois law according to Illinois choice of law principles, doing so would not pass constitutional muster. In Phillips Petroleum Co. v. Shutts, 472 U.S. 797 , 86 L. Ed. 2d 628 , 105 S. Ct. 2965 (1985), the Supreme Court reviewed a class action brought in Kansas against Phillips Petroleum for recovery of interest on royalties in oil and gas contracts. The contracts at issue were entered into in 10 different states. Even though most of the contracts were entered into outside Kansas, the Kansas Supreme Court upheld its trial court’s decision to apply Kansas law to the entire action.

The Supreme Court reversed. The Court stated that even in a case where multiple choices of law might be possible, the forum court’s choice of law had to comply with constitutional guarantees of due process. Shutts, 472 U.S. at 822-23 , 86 L. Ed. 2d at 649 , 105 S. Ct. at 2980 (“in many situations a state court may be free to apply one of several choices of law. But the constitutional limitations *** must be respected even in a nationwide class action”). The Court rejected the rule formulated by the Kansas Supreme Court that “ 'Where a state court determines it has jurisdiction over a nationwide class action and procedural due process guarantees of notice and adequate representation are present, we believe the law of the forum should be applied unless compelling reasons exist for applying a different law.’ ” Shutts, 472 U.S. at 821 , 86 L. Ed. 2d at 648 , 105 S. Ct. at 2979 , quoting Shutts v. Phillips Petroleum Co., 235 Kan. 195, 221-22 , 679 P.2d 1159, 1181 (1984). The Court also noted that a plaintiffs choice of the forum state’s law — as evinced by having filed the suit there — is of “little relevance.” Shutts, 472 U.S. at 820 , 86 L. Ed. 2d at 648 , 105 S. Ct. at 2979 . Rather, the Court held that to apply its own law, the forum state “must have a ‘significant contact or significant aggregation of contacts’ to the claims asserted by each member of the plaintiff class, contacts ‘creating state interests,’ in order to ensure that the choice of [the forum state’s] law is not arbitrary or unfair.” Shutts, 472 U.S. at 821-22 , 86 L. Ed. 2d at 648 , 105 S. Ct. at 2979 . The Court concluded that, in the case before it, “[g]iven [the forum state’s] lack of ‘interest’ in claims unrelated to that State, and the substantive conflict with jurisdictions such as Texas, we conclude that application of [the forum state’s] law to every claim in this case is sufficiently arbitrary and unfair as to exceed constitutional limits.” Shutts, 472 U.S. at 822 , 86 L. Ed. 2d at 648 , 105 S. Ct. at 2979 .

The same shortcomings that caused the Supreme Court to find a constitutional violation in Shutts are present in the instant case. As in Shutts, there are significant outcome-determinative differences between the law of Illinois and the laws of other states regarding the breach of contract action. For instance, our circuit and appellate courts determined that State Farm’s promise to have repairs performed with parts “of like kind and quality” meant “of like kind and quality to OEM parts,” a conclusion with which I agree. However, as State Farm observes, courts in other jurisdictions have not so construed the language. See, e.g., Ray v. Farmers Insurance Exchange, 200 Cal. App. 3d 1411, 1417 , 246 Cal. Rptr. 593, 596 (1988) (“ ‘like kind and quality’ *** means ‘substantially the same condition [as] before the accident’ ”), quoting Owens v. Pyeatt, 248 Cal. App. 2d 840, 849 , 57 Cal. Rptr. 100, 107 (1967); Schwendeman v. USAA Casualty Insurance Co., 116 Wash. App. 9, 22-23 , 65 E3d 1, 8 (2003); see also Berry v. State Farm Mutual Automobile Insurance Co., 9 S.W.3d 884, 894-95 (Tex. Civ. App. 2000). Other states have expressly provided by statute or regulation that non-OEM parts may be used in repairs so long as they are the equivalent of the part on the vehicle immediately prior to the accident. See Or. Rev. Stat. § 746.287 (2) (1999); Mass. Regs. Code tit. 211, § 133.04(1) (2004); 806 Ky. Admin. Regs. 12 :095 (2003). Application of these jurisdictions’ laws would change the outcome of the instant case.

It is possible for a forum state to have a sufficient interest in the resolution of the claims of out-of-state litigants as to render the application of the forum state’s law neither arbitrary nor fundamentally unfair despite outcome-determinative differences. Shutts, 472 U.S. at 818 , 86 L. Ed. 2d at 646 , 105 S. Ct. at 2977-78 . However, I do not believe that Illinois has such an interest in the instant action. It is true that State Farm is an Illinois corporate citizen, and Illinois does have an interest in regulating its conduct. However, Illinois does not have any particularly compelling interest in protecting the rights of the citizens of other states, especially given that there is no indication that the other states are unable or unwilling to vindicate the rights of their citizens within their own court systems, according to their own laws. Moreover, neither State Farm nor any non-Illinois policyholder would appear to have had any reasonable expectation that Illinois law would govern their contractual dispute. See Shutts, 472 U.S. at 822 , 86 L. Ed. 2d at 648-49 , 105 S. Ct. at 2979-80 (fairness calculus must take into account the reasonable expectations of parties as to which state’s law would control). Thus, I believe that applying Illinois law to the entire nationwide class which the circuit court certified in this case would run afoul of the due process concerns spelled out in Shutts, and I would reverse the multistate certification for this reason. See State ex rel. American Family Mutual Insurance Co. v. Clark, 106 S.W.3d 483, 486-87 (Mo. 2003).

B. Contract Interpretation

Having determined that the nationwide class cannot stand, the court next examines whether the verdict may be upheld with respect to any subclass. 216 Ill. 2d at 135. The court concludes that the question must be answered in the negative. The court actually answers this question in two paragraphs, with no analysis or citation to authority, based on the verdict form. See 216 Ill. 2d at 135-36. This ought, perhaps, to be the end of the opinion. But, the court quickly turns the reader’s eye away from the paucity of its analysis of what is apparently the determinative issue in the case by turning to a lengthy exegesis of the individual policy forms.

Before reviewing the court’s conclusion that, as a matter of law, the plaintiffs failed to prove a breach of any promise State Farm made in any of the various policies State Farm drafted, it is helpful to recall the overarching theme of the plaintiffs’ complaint. At its heart, plaintiffs’ complaint was that State Farm promised policyholders that their vehicles would be repaired with OEM-quality parts, but the non-OEM parts State Farm specified for repairs were simply not as good as OEM parts and that State Farm knew it. State Farm knowingly specified the inferior non-OEM parts, plaintiffs contended, because they were cheaper. These contentions cannot be ignored, when one considers the evidence adduced at trial. Plaintiffs presented to the jury numerous internal State Farm memoranda that detailed problems with non-OEM parts, some of which criticized non-OEM parts as a class. One such memorandum went so far as to state specifically, in contrasting galvanized OEM parts with nongalvanized non-OEM parts, that “we may well say it is like kind and quality, but the bottom line is that it is not the same.” Plaintiffs also presented expert testimony to the effect that non-OEM parts were categorically inferior to OEM parts and thus were never of like kind and quality. State Farm does not challenge these experts’ bona fides on review, and thus their conclusions must be accepted. I believe it is important to note that a reviewing court neither can substitute its judgment for that of the trier of fact nor can it set aside a verdict simply because the trier of fact could have drawn different conclusions from conflicting testimony. Doser v. Savage Manufacturing & Sales, Inc., 142 Ill. 2d 176 (1990). Although State Farm presented its own expert witnesses, a “battle of the experts” is a situation in which reviewing courts are especially loathe to second-guess the findings made by the trier of fact. See In re Glenville, 139 Ill. 2d 242 (1990).

The court avoids discussing the evidence presented by plaintiffs by holding that State Farm never promised any policyholders that repairs would utilize parts of equal quality to OEM parts. Thus, according to my colleagues, it does not matter whether State Farm was knowingly repairing its policyholders’ vehicles with inferior parts, because State Farm never promised to use noninferior parts. I suggest that the court has perhaps insufficiently considered the policy implications of overturning a billion dollar verdict on the basis that an insurer’s knowing usage of inferior parts is “good enough.” I am not stating that non-OEM parts are by definition inferior; my point is that plaintiffs alleged, and by its verdict the jury found, that as of now non-OEM parts are not up to the standards of OEM parts — a factual conclusion the court avoids addressing. The quality of non-OEM parts could change in the future, but the court does not dispute that the crash parts State Farm was actually specifying for repairs were inferior to their OEM counterparts.

In addition to being bad policy, the court’s conclusion is also based on a flawed analysis of the relevant contractual provisions. In this regard I note a piece of evidence which the court has remarkably determined to be irrelevant. In 1986, State Farm’s vice president of claims penned a confidential internal memorandum, known as “General Claims Memorandum #430” (hereinafter GCM #430). Therein, he discussed the quality of the parts to be used in repairs. He — that is, State Farm’s vice president of claims — specifically distinguished between what was required of “aftermarket” parts and what was required of “salvage” parts. As an aid to understanding the memorandum, I note that it is uncontroverted that “aftermarket” is a synonym for “non-OEM,” and it is also uncontroverted that “salvage” parts are, as the name implies, a lower grade than non-OEM parts. In comparing the two grades of parts, State Farm’s vice president of claims had this to say:

“Aftermarket parts must be of OEM quality, that quality must be guaranteed by the suppber;

Salvage parts must be of equal, or better, quahty compared to the parts being replaced.” (Emphases in original.)

Thus State Farm specifically required that non-OEM parts be of equal quality to OEM parts, only holding “salvage” parts to the lesser standard of equivalence to the parts being replaced.

One might think that this would be the end of the matter. A reasonable reader might expect that a reviewing court would affirm the lower court’s conclusion that non-OEM parts had to be of equal quality to OEM parts, given a memorandum by State Farm’s vice president of claims which precisely so stated. The court, however, does not consider whether GCM #430 ought to be treated as a binding admission by State Farm, because the court, in a footnote, concludes that GCM #430 is irrelevant. See 216 Ill. 2d at 142 n.5. Instead, the court performs its own investigation into the policies at issue, ignoring the fact that State Farm has already said that its non-OEM (aftermarket) parts “must be of OEM quality,” as opposed to salvage parts, a lower grade, which are merely required to be of equal quality “to the parts being replaced.”

Even if the court were correct to so blatantly ignore the evidence, its analysis of the contracts is logically faulty. For instance, in what the court calls “The ‘You Agree’ Policies” (see 216 Ill. 2d at 137 (heading 2)), State Farm promises to restore the insured’s vehicle to its “preloss condition.” This particular form of the contract also contains what the court calls the “you agree” language: “You agree with us that such parts may include either parts furnished by the vehicle’s manufacturer or parts from other sources including non-original equipment manufacturers.” (Emphasis in original.) See 216 Ill. 2d at 137.

The court’s defense of this policy form is twofold, and begins by focusing on the “you agree” language. The court reasons that by agreeing to this language a policyholder has implicitly admitted that there must exist at least some non-OEM parts capable of satisfying State Farm’s promise. The court construes this admission strictly against the policyholder (in startling contrast to the court’s treatment of State Farm’s admission in GCM #430 that non-OEM parts must be of equal quality to OEM parts). See 216 Ill. 2d at 137-38.

First, one must recall that this is an insurance policy — a classic contract of adhesion. See Cramer v. Insurance Exchange Agency, 174 Ill. 2d 513, 533 (1996) (Freeman, J., specially concurring) (“It is well established that an insurance contract is one of adhesion”); see also Williams v. Illinois State Scholarship Comm’n, 139 Ill. 2d 24, 72 (1990) (adhesion contracts are those in which the parties are in a disparate bargaining position, and one party has no hand in drafting the agreement but, rather, must “take it or leave it” as the other party has drafted). Contractual clauses which are “part of a ‘boilerplate’ agreement” in a contract of adhesion have their “significance greatly reduced because of the inequality in the parties’ bargaining power.” Williams, 139 Ill. 2d at 72 . The average person has no ability to bargain over the individual clauses of his or her auto insurance policy. The court ignores this fact, and seriously damages the credibility of its analysis by doing so. The notion that a policyholder has entered into a binding, factual admission simply by purchasing an auto insurance policy would merely be laughable if the court was not seriously suggesting it as a basis for overturning a billion dollar verdict produced by a two-month-long trial in which the evidence supports the conclusion that an insurer knowingly specified inferior crash parts for repairs of its policyholders’ vehicles.

More overridingly, however, even ignoring the injustice of strictly construing a contract of adhesion in favor of the drafter, the court’s analysis is logically flawed. The “you agree” language is not an admission that there exist non-OEM parts which will restore vehicles to their preloss condition. It is merely an agreement that if State Farm proposes to perform a repair with a non-OEM part which is sufficient to restore a vehicle to its preloss condition, the insured cannot object to the part simply because it is non-OEM. But if non-OEM parts are not sufficient to restore vehicles to their preloss condition, as plaintiffs have consistently maintained and as the jury by its verdict found, the policyholder cannot be not forced to accept it simply because of the “you agree” language.

The fallacy of the court’s position is better viewed when one examines how it would play out in the context of other policies State Farm could have issued. Suppose, for example, that State Farm knew that all of the major auto manufacturers were considering building plants in a foreign country that I shall designate as Country A. In anticipation of the plants being built and in order to forestall any complaints by policyholders about receiving parts produced in Country A, State Farm amended its policy so as to provide that

“You agree with us that such parts may include parts furnished by the vehicle’s manufacturer, including parts manufactured in Country A.”

The reasoning employed by the court in the instant case would hold that everyone insured under this policy has entered into a binding admission that there are General Motors parts manufactured in Country A which are of sufficient quality to restore their vehicles to preloss condition. This is logically fallacious. Recall that the policy language in my hypothetical was drafted in advance of the plant in Country A being built, and thus at the time it went into use, there did not exist any General Motors parts made in Country A. A plain reading of this language is, rather, a concession by the insured that if a part manufactured in Country A suffices to restore his vehicle to its preloss condition, he may not reject the part simply because of its origin in Country A.

My colleagues might protest that this hypothetical is far-fetched — and it may be — but no more so than the court’s tortured reading of language in a contract of adhesion against innocent policyholders in order to avoid having to acknowledge the proofs adduced at trial. The underlying point remains that the language upon which the court relies is not an admission by an insured that there exist non-OEM parts which suffice to restore a vehicle to its preloss condition. It is merely an agreement that if there are such parts, the insured may not refuse to accept them simply because they are non-OEM parts.

The second stage of the court’s defense of this policy-form focuses on the fact that State Farm’s promise is to restore the insured’s vehicle to its “pre-loss condition.” The court believes that this policy form is unsuited to be the basis of a class action because to determine whether a vehicle has been restored to its preloss condition requires determination of the condition of each individual policyholder’s vehicle before the loss and after repair, and this multitude of individual questions would “overwhelm any question common to the subclass.” 216 Ill. 2d at 138.

However, as I have already noted, State Farm witness Porter testified that the term “quality replacement part,” which meant “parts that are as good as the parts that were on the vehicle at the time of the loss,” was a guarantee of OEM quality. This testimony equates the guarantee to restore the vehicle to preloss condition with a guarantee of OEM-quality replacement parts, which undermines the court’s theory that preloss condition destroys commonality. If preloss condition means OEM quality, as Porter’s testimony reveals, then a vehicle cannot be restored to preloss condition with a part which falls short of OEM quality. Thus if, as the jury concluded, all non-OEM parts are of lesser quality than OEM parts, individual examinations of plaintiffs’ vehicles are not necessary. State Farm does not argue in its briefs to this court that the circuit court erred in determining that the “pre-loss condition” and “like kind and quality” promises are the same. Indeed, to the contrary, State Farm affirmatively argues that the promises are the same, an argument the majority accepts. See 216 Ill. 2d at 143-44.

Accordingly, the court has failed to demonstrate any reason that plaintiffs would be barred from recovering under “The ‘You Agree’ Policies.”

The court’s analysis of the “like kind and quality” policies also falls short. Here, the court examines those policies in which State Farm has written that it promises to “pay to repair or replace the property or part with like kind and quality.” The court construes this language in the most favorable way possible for State Farm, concluding ultimately that this is an unambiguous promise to restore the vehicle to its preloss condition — a term which appears nowhere in this form of the contract.

The court acknowledges (see 216 Ill. 2d at 140) plaintiffs’ argument that “like kind and quality” means of “like kind and quality to OEM parts.” This interpretation is well supported by State Farm’s own analysis of the standards required of non-OEM parts, in GCM #430:

“Aftermarket parts must be of OEM quality, that quality must he guaranteed by the supplier;

Salvage parts must be of equal, or better, quality compared to the parts being replaced.” (Emphases in original.)

I respectfully suggest that this ought to be the end of the matter. Plaintiffs argue that “like kind and quality” means “like kind and quality to OEM parts”; State Farm has admitted in its internal memoranda that this is precisely the quality standard it requires of non-OEM parts; case closed.

Instead, the court once again ignores the memorandum by State Farm’s vice president of claims and construes the language State Farm drafted in State Farm’s favor, even going so far as to draw inferences advantageous to State Farm. See 216 Ill. 2d at 140-45. In so doing, the court abandons our well-established rule that ambiguities in insurance contracts are to be strictly construed against the drafter. See Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 293 (2001); American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997); Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 108-09 (1992).

The phrase “like kind and quality” is clearly ambiguous. The language itself gives no clue as to whether it means of like kind and quality to OEM parts or to the part which existed on the vehicle immediately prior to the crash. But instead of construing this phrase against State Farm, as mandated by our precedent, the court bends over backwards to find an interpretation that favors State Farm. For instance, the court reasons that if non-OEM parts never satisfied this promise (as plaintiffs have alleged), there would be no need for this “indirect phrasing.” 216 Ill. 2d at 140. In other words, the court finds that the very vagueness of State Farm’s contract of adhesion is a point in State Farm’s favor.

Moreover, the court misses the fundamentally obvious point that State Farm and the plaintiffs disagreed as to whether non-OEM parts were of like kind and quality to OEM parts. State Farm, of course, has maintained all along that non-OEM parts are or can be of like kind and quality to OEM parts. Given this professed belief, there was no reason for State Farm to restrict itself only to using OEM parts. The proofs at trial, however, convinced the jury that this was not the case. Essentially, the court is saying that State Farm must not have promised that any non-OEM parts it used would be of OEM quality because the plaintiffs argued and proved that State Farm never fulfilled this promise. This defies reason. We do not automatically adopt a defendant’s interpretation of a contract it drafted whenever a plaintiff proves a breach of its interpretation of the contract. To so suggest is absurd.

The court also draws inferences in favor of State Farm from the sentence which follows the “like kind and quality” promise: “If the repair or replacement results in better than like kind and quality, you must pay for the amount of the betterment.” Clearly this statement by State Farm in its contract of adhesion is meant to cover State Farm in the unlikely event that a repair left the policyholder better off. But the court argues on State Farm’s behalf that the very existence of this statement shows that “like kind and quality” cannot mean “like kind and quality to OEM parts,” because if it did, nothing could ever run afoul of the “better than ‘like kind and quality’ ” language. (Emphasis omitted.) 216 Ill. 2d at 141. First, this reasoning is faulty in much the same way as the court’s reasoning regarding the “you agree” language: State Farm could just as easily have provided that “If the repair or replacement results in your vehicle being able to fly to the moon, you must pay for the value of this ability.” That State Farm included self-serving language in a contract of adhesion does not constitute an admission by its policyholders regarding the hypothetical possibility against which State Farm has sought to protect itself.

Moreover, the proofs plaintiffs presented at trial concerned the quality of non-OEM parts during the relevant period. Plaintiffs claimed, and the jury concluded, based on documentary evidence and the testimony of experts whose bona fides State Farm does not challenge on appeal, that non-OEM parts were not the equal of OEM parts. This does not foreclose the possibility that a master craftsman in Zurich might in the future take it upon himself to smith a set of General Motors crash parts out of titanium alloy, to such precise tolerances that the parts were indeed an improvement on OEM parts. More realistically, it is possible that in the future a company could mass produce non-OEM parts which are better than OEM parts. It could happen. But according to the proofs plaintiffs presented at trial, and the verdict the jury returned in plaintiffs’ favor, it has not happened yet. State Farm has protected itself against this eventuality by the sentence upon which the court relies. But there is no basis for the court’s broad inference from this sentence to support its interpretation of the baseline promise State Farm has made in this version of the policy.

Again, the flaw in the court’s reasoning is that it is taking into account plaintiffs’ theory of the case in evaluating State Farm’s contractual promises. The court’s reasoning runs as follows: if, as plaintiffs contend, no non-OEM parts were of like kind and quality to OEM parts, then there would have been no reason for State Farm to draft the policy in the manner in which plaintiffs suggest they did. The problem with this reasoning is that it was very much in dispute whether non-OEM parts were of like kind and quality to OEM parts. State Farm has consistently maintained and still maintains that they are or can be equivalent, and State Farm drafted the policy.

Moreover, as I have already observed, the court ultimately concludes that “like kind and quality” means something which is nowhere found in the language of this policy: it means, just as State Farm argues, “ ‘sufficient to restore a vehicle to its pre-loss condition.’ ”216 Ill. 2d at 144. There are a number of difficulties with this conclusion. First, it contravenes the rule that ambiguous language in an insurance contract is to be strictly construed against the insurer. Clearly the court finds the “like kind and quality” language ambiguous, given that the court ultimately finds that it has a meaning contained nowhere in the contract. Given that it is ambiguous, there is no question that it ought to be construed against State Farm. Eljer Manufacturing, 197 Ill. 2d at 293 ; Koloms, 177 Ill. 2d at 479 ; Outboard Marine, 154 Ill. 2d at 108-09 .

A second problem with the court’s conclusion is that in order to reach it, the court ignores State Farm’s own admissions that non-OEM parts “must be of OEM quality.” The court’s willful blindness to GCM #430 is truly troubling. It is, of course, possible for reasonable minds to differ as to the weight to accord a particular piece of evidence. But to act as though a document on the precise issue at hand, penned by State Farm’s vice president of claims, does not even exist does a disservice not only to the parties but also to the credibility of this court. The court suggests that GCM #430 is irrelevant because it is not contained within the four corners of the policy and the court has not explicitly found that the “like kind and quality” language is ambiguous. See 216 Ill. 2d at 142 n.5. This misses the mark. As I have already observed, the meaning the court ultimately ascribes to the phrase— “sufficient to restore a vehicle to its pre-loss condition” — is itself not found within the four corners of the document. It can only further erode the public’s trust in the judiciary to reverse a verdict of this size, ignoring relevant evidence precisely on point, because the court claims it is unambiguous — clear, beyond any doubt — that State Farm’s promise to “repair or replace the property or part with like kind and quality” means “with a part equally bad to whatever part was on the vehicle just before the accident” and cannot possibly mean “like kind and quality to OEM parts.” There is no defensible basis for this conclusion and there is a host of evidence to the contrary, including not only Porter’s testimony and the text of GCM #430, but also extensive testimony by State Farm witnesses that repairs with non-OEM parts would never compromise the safety of the vehicle. If State Farm may utilize replacement parts no better than the parts which happened to be on the vehicle preaccident, however old or faulty, as the court concludes, a vehicle could very well have safety issues after repair. If the court is looking outside the document to understand the meaning of the phrase, and there is no question that it is, then the court is treating the phrase as ambiguous, regardless of whether my colleagues are forthright enough to so admit.

Moreover, GCM #430 itself shows that the court’s analysis of the contract is wrong — not only is the phrase ambiguous, but the court has actually interpreted it incorrectly. GCM #430 directly contradicts the court’s pro-State Farm interpretation of the ambiguous phrase in State Farm’s insurance policy. Not only did the vice president of claims specify that aftermarket parts had to be “of OEM quality,” he also specified that the lesser standard of equality to “the parts being replaced” — i.e., preloss condition — was a standard applicable only to “salvage parts.” How the court can square its interpretation of “like kind and quality” with this evidence is beyond me. Apparently, given the court’s deafening silence on the matter, it is beyond the court as well.

The court errs in construing the ambiguous language “like kind and quality” in favor of State Farm, in terms which appear only in other versions of the policy. Doing so violates the rule that ambiguous terms in insurance policies are strictly construed against the drafter. Indeed, three out of the four members of today’s majority have authored opinions which have explicitly endorsed this long-standing rule of construction of insurance contracts, and the fourth member has recently concurred in an opinion in which the rule was applied. See Eljer Manufacturing, 197 Ill. 2d at 293 (Justice McMorrow, writing for the court, acknowledging that “if the language of the policy is susceptible to more than one meaning, it is considered ambiguous and will be construed strictly against the insurer who drafted the policy and in favor of the insured”); Central Illinois Light Co. v. Home Insurance Co., 213 Ill. 2d 141, 153 (2004) (Justice Garman, writing for the court, acknowledging that “if the words used in the policy are reasonably susceptible to more than one meaning, they are ambiguous and will be strictly construed against the drafter”); Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 393 (2005) (Justice Fitzgerald, writing for a unanimous court, acknowledging that “[i]f the policy language is susceptible to more than one reasonable meaning, it is considered ambiguous and will be construed against the insurer”). This construction also contradicts the court’s own statements that “There is nothing to support the conclusion that [linguistic differences] are irrelevant and that all of State Farm’s policy variations therefore are susceptible of the same contractual interpretation” (216 Ill. 2d at 134) and that the “like kind and quality” policy form and the “pre-loss condition” form “are not the same.” (Emphasis in original.) 216 Ill. 2d at 130. The court also ignores State Farm’s own interpretation of its obligations in GCM #430, a document by a State Farm vice president which directly contradicts State Farm’s position and the court’s conclusion regarding what is required of non-OEM (aftermarket) parts. The court’s conclusion that in order to be “like kind and quality,” non-OEM parts need merely to be sufficient to put the car in preloss condition erases the distinction drawn by State Farm in GCM #430 between non-OEM parts and salvage parts.

Because the reasoning regarding the “like kind and quality” form of contract is erroneous, there is no reason that plaintiffs could not recover under this form of the contract as well as the “pre-loss condition” form of contract, as I previously demonstrated.

Unlike my colleagues, I would construe the ambiguous terms in State Farm’s policies against the drafter, in accordance with our unwavering precedent. See, e.g., Eljer Manufacturing, 197 Ill. 2d at 293 ; Koloms, 177 Ill. 2d at 479 ; Outboard Marine, 154 Ill. 2d at 108-09 . Noting that State Farm witness Porter testified that State Farm’s obligation was everywhere the same, and that State Farm’s vice president of claims specified that non-OEM parts must be “of OEM quality,” as opposed to the lesser standard of equivalence “to the parts being replaced,” which applied only to salvage parts, I would affirm the conclusion of the circuit court and appellate court that State Farm could only satisfy its obligations to its insureds with non-OEM parts of equivalent quality to OEM parts.

C. Damages

The court goes on to discuss the damages awarded on the breach of contract claim, even though doing so is not necessary to its decision. Having already determined that the verdict form was faulty and there was in any event no breach of any of the underlying policies, the court’s decision to address damages is clearly dictum, even though the court labels its damages discussion an “additional reason” to reverse. As I stated at the outset, I agree with the court that there is no basis for the so-called “specification” damages. No State Farm policyholder was harmed by the isolated act of State Farm specifying that their vehicle was to be repaired with a non-OEM part. Rather, only those policyholders whose vehicles were actually repaired with non-OEM parts or who paid the difference to have OEM parts installed can be said to have been harmed.

However, I do not agree with the court’s unwarranted attack on plaintiffs’ counsel for requesting specification damages. First, it is wholly irrelevant to the legal issues involved in this case “why plaintiffs devised their specification-damages theory in the first instance.” 216 Ill. 2d at 147. The court’s answer to this question is nothing more than an attack on plaintiffs’ counsel as unintelligent and dishonest, in that order. The court reasons that counsel was, at first, ignorant that plaintiffs would have to establish damages without destroying commonality and, then, mendacious enough to deliberately invent a bogus category of damages in order to hoodwink the circuit court into maintaining this action as a class action when it should not have been. 216 Ill. 2d at 147-48. This vilification of plaintiffs’ counsel is wholly speculative and injudicious.

The court’s attack has the additional fault of being inaccurate. The court guesses that plaintiffs invented specification damages because without them, plaintiffs would have been “unable to establish damages and still maintain the commonality required of a class action.” 216 Ill. 2d at 147. And yet, the court does not hold that the other category of damages plaintiffs claimed, installation damages, destroyed commonality. In fact, the court admits that there is nothing wrong with “us[ing] statistical inference in determining aggregate damages in a class action suit” (216 Ill. 2d at 151), as plaintiffs did with respect to installation damages. The court here implicitly admits that plaintiffs could have established installation damages without destroying commonality (the court simply holds that plaintiffs presented insufficient evidence to support their installation damage claim in this case, a conclusion with which I disagree, as I shall discuss). So the “realization” the court attributes to plaintiffs is entirely false. And thus the attack on plaintiffs’ counsel, along with the impugning of their integrity, unwarranted even if it were accurate, is ill-founded as well.

With respect to installation damages, I would hold that plaintiffs did present sufficient evidence to uphold their installation damages claim. This court has stressed that the determination of the amount of damages is a function reserved to the trier of fact and that a reviewing court should not substitute its opinion for the judgment rendered in the trial court. Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). Moreover, “a court reviewing a jury’s assessment of damages should not interfere unless a proven element of damages was ignored, the verdict resulted from passion or prejudice, or the award bears no reasonable relationship to the loss suffered.” Snelson v. Kamm, 204 Ill. 2d 1, 37 (2003). Therefore, when “the calculations and proportions of the award demonstrate a strong relation to the evidence presented, the jury’s determination cannot be against the manifest weight of the evidence. See Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1138 (2000) (if a jury’s award falls within the flexible range of conclusions reasonably supported by the evidence, it must stand).” (Emphasis added.) Snelson, 204 Ill. 2d at 38-39 . These long-standing principles are nowhere acknowledged in today’s opinion.

The court’s damages discussion presents an anomaly in American jurisprudence, in that it would reverse a damage award for being too low. I know of no rule of law which would lead a court of review to conclude, as the court does today, that if the jury had given plaintiffs more than it believed the plaintiffs had proven they deserved, it would affirm, but because the jury was conservative and awarded a low amount, plaintiffs are entitled to no compensation at all.

In my view, the court appears to be punishing the conservatism of the jury’s damage award. Dr. Mathur testified that damages could be as high as $1.2 billion. He also testified that his estimate could be off by as much as $1 billion. The jury obviously took Dr. Mathur at his word. The jury accepted the top estimate Dr. Mathur suggested, but reduced his highest estimate by the largest correction he endorsed. These calculations clearly “demonstrate a strong relation to the evidence presented” (Snelson, 204 Ill. 2d at 38 ), and thus are not against the manifest weight of the evidence. I decline to join the court’s suggestion that jury awards which bear a strong relation to the evidence presented might still be reversed for being too low, and I question the impact the court’s discussion will have on future damage awards in this state. And, again, it is worth recalling that the entire discussion here is dictum, as the court has already determined that the plaintiff class is entitled to no relief on other, independent grounds. The court’s decision to include this analysis cannot be understood as anything but a decision to attack this particular jury verdict on every conceivable front.

D. Disposition

In light of the foregoing, I believe that the appropriate disposition with regard to the breach of contract claim is to remand the cause to the circuit court to determine whether there exists any subclass of the nationwide class with respect to which the verdict may be upheld. In contrast to my colleagues, I believe that the proper reason for reversing the nationwide class is the Shutts problem: there are outcome-determinative differences between the laws of Illinois and the laws of other states, and Illinois has no compelling interest in applying its law to states whose laws differ. See supra, 216 Ill. 2d at 214 (Freeman, J., concurring in part and dissenting in part, joined by Kilbride, J.). But the fact that there are outcome determinative differences between Illinois and some other states does not mean that there are outcome-determinative differences between Illinois and all other states. Thus, on remand, I would direct the circuit court to hold a hearing to determine which (if any) of the states that have been the subject of evidence in these proceedings is sufficiently closely aligned with Illinois law that the use of Illinois law to determine the contractual rights of State Farm’s policyholders in that state would not offend State Farm’s due process rights. Such a result would be well within the circuit court’s inherent power to manage class actions. See 735 ILCS 5/2 — 802(a), (b) (West 1998). See also Purcell & Wardrope, Chartered v. Hertz Corp., 279 Ill. App. 3d 16, 20 (1996) (“ ‘A class action may, nevertheless, still be maintained, despite these conflicting or differing State laws, and the court may simply choose to divide the class into subclasses. Moreover, if at some later time in the litigation, the subclassification becomes unmanageable, the court, of course, always has the option to set aside the class certification or a portion of it’ ”), quoting Purcell & Wardrope, Chartered v. Hertz Corp., 175 Ill. App. 3d 1069, 1075 (1988). Assuming that all the requirements of a class action are satisfied with respect to such a subclass, the verdict could be affirmed with respect to that subclass, with damages equal to the pro rata portion of the nationwide installation damages attributable to the policyholders in those states.

Notwithstanding the decertification of the entire nationwide class, a considerable volume of evidence has been received in connection with this matter and considerable judicial resources which have been expended thereon. As previously noted, this trial lasted nearly two months and the pretrial proceedings spanned more than two years. It would be contrary to any proper sense of judicial economy to require a retrial as to the contract issues for the rights of any subclass of policyholders to which Illinois law could be applied without impacting the due process rights of State Farm.

Nor is judicial economy the only interest to be served by making all reasonable efforts to uphold the verdict to the extent possible. Class actions are a valued, indeed an integral, part of our judicial system and our society. As Chief Justice Burger, in writing for the United States Supreme Court, recognized,

“The aggregation of individual claims in the context of a classwide suit is an evolutionary response to the existence of injuries unremedied by the regulatory action of government. Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device.” Deposit Guaranty National Bank of Jackson v. Roper, 445 U.S. 326, 339 , 63 L. Ed. 2d 427, 440 , 100 S. Ct. 1166, 1174 (1980).

In other words, the class action makes it possible for wrongs, which might otherwise go unredressed, to be pursued, and righted. The possibility that wrongdoers might be held accountable provides a powerful incentive not to engage in even small-scale wrongdoing, and such an incentive can only benefit society as a whole. If there was a wrong committed here — as the jury found, the trial court agreed, the appellate court confirmed, and I would affirm — State Farm ought to be held accountable therefor to the extent that due process will allow.

II. CONSUMER FRAUD

I concur in the court’s analysis of the consumer fraud issue. However, the court’s analysis includes an instance of objectionable dicta. Also, as with the breach of contract issue, I find the tone and tenor of the court’s analysis to be injudicious. I, therefore, disavow and dissent from those instances of hostile rhetoric and objectionable dicta.

I agree with the court’s analysis of the consumer fraud issue. Due to inconsistencies in the arguments of counsel and analyses in the lower courts, the court correctly discusses what allegations are not at issue. 216 Ill. 2d at 170-77. This discussion leads to the core allegation of plaintiffs consumer fraud claim: that, during the claims process, State Farm failed to disclose the categorical inferiority of non-OEM parts. 216 Ill. 2d at 177-78.

Turning to the propriety of the nationwide consumer fraud class, the court opinion correctly holds that the Illinois Consumer Fraud Act has no out-of-state effect and I expressly agree with the court’s analysis of this issue. 216 Ill. 2d at 179-90. Further, the court correctly concludes that, in this case, the Consumer Fraud Act applies only to those policyholders whose vehicles were assessed and repaired in Illinois. Accordingly, the court focuses its application of the Act solely on DeFrank, who is the only named plaintiff who can represent an Illinois class. 216 Ill. 2d at 191-99.

The court eventually concludes as follows. DeFrank suffered no actual damage as a result of State Farm’s specification of non-OEM parts. 216 Ill. 2d at 195-99. Also, based on this court’s Zekman and Oliveira decisions, and DeFrank’s testimony, DeFrank was not actually deceived by anything State Farm said or did not say regarding the quality of non-OEM parts. 216 Ill. 2d at 199-202.

Although I concur in the court’s analysis of the consumer fraud issue, I dissent from an instance of ohjectionable dicta. It is found in section 11(C)(2) of the court opinion, captioned “The Deceptive Act or Practice.” 216 Ill. 2d at 192-95. Prior to reaching the determinative issues with respect to DeFrank, the court opinion purports to identify the deceptive act or practice that pertains to DeFrank. However, the opinion already identified this claim. 216 Ill. 2d at 175-77. The clear purpose of this section is to discuss the state regulation of aftermarket crash parts as a possible basis for reversal. At the close of this discussion, the court expressly declines to resolve the issue. If the court is unwilling to resolve this issue, then the court should not raise it.

I also take issue with the tenor of the court’s analysis of the consumer fraud claim. Like the section dealing with breach of contract, the court indulges in sarcasm, chiding, and innuendo in furtherance of needless and intemperate attacks on the plaintiffs bar and our own appellate court. Some examples follow:

“Plaintiffs deliberately avoided any theory relating to defective parts at trial because such a theory would have significantly increased their burden of proof. Such a theory would also have rendered class certification far less likely, since the common question of fact or law necessary for certification would have been more difficult to establish if plaintiffs had been forced to prove that each individual non-OEM part, or grouping of parts, was defective.” 216 Ill. 2d at 170.

This is sheer speculation. Also, the majority suggests that the appellate court intentionally rephrased or re-characterized DeFrank’s actual damages to avoid certain “temporal problems.” 216 Ill. 2d at 198. Assigning such motives to the appellate court constitutes unfair innuendo. These statements impugn the integrity of the bench and bar. I expressly disavow them.

CONCLUSION

Although I am in agreement with my colleagues on a number of legal points, I disagree with many conclusions reached by them today. I find the tone taken by the court with respect to plaintiffs’ trial counsel and the lower courts to be particularly unwarranted given that their actions were not especially egregious. They did not flout any of the rules of this court nor did they break with precedent in such a way as to deserve condemnation. Thus, the question becomes, from whence does this hostility come? What is not said anywhere in today’s opinion is the fact that this case has been the focus of a great deal of national attention with respect to class actions in general and our Fifth District in particular. In my view, today’s opinion appears to be my colleagues’ point of entry into the ongoing national debate concerning class action litigation. It is my considered opinion, however, that while this debate is being conducted in the legislative arena amongst our elected officials in Congress and the Illinois General Assembly, we in the judiciary ought to tread carefully.

I am as troubled as every citizen ought to be about the possibility of abuse of the class action vehicle. And it would further no end to feign ignorance of the fact that some allegations of abuse have been leveled at the courts of this state, and the Fifth District in our state in particular. However, as the saying goes, the baby should not be thrown out with the bathwater. In 1977, this court acknowledged the utility of the class action as a method of litigating complex common questions brought by numerous claimants:

“A class action is a potent procedural vehicle. Under its terms claims by multiple persons can be decided without the necessity of the appearance of each. A vindication of the rights of numerous persons is possible in a single action when for many reasons individual actions would be impracticable. [Citations.] The origins of this invention of equity, according to Professor Chafee [citation], go back almost 300 years. Its purpose has been described as ‘to enable it [equity] to proceed to a decree in suits where the number of those interested in the subject of the litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impracticable.’ [Citation.]” Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 334-35 (1977).

Several years later, the United States Supreme Court echoed our sentiments, noting:

“The class-action device was designed as ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ [Citation.] Class relief is ‘peculiarly appropriate’ when the ‘issues involved are common to the class as a whole’ and when they ‘turn on questions of law applicable in the same manner to each member of the class.’ [Citation.] For in such cases, ‘the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under [Federal Rule of Civil Practice] 23.’ [Citation.]” General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 155 , 72 L. Ed. 2d 740, 749 , 102 S. Ct. 2364, 2369 (1982).

These observations illustrate why class actions have long held a legitimate and important place in the judiciary. Both this court and the United States Supreme Court have approved of this litigation tool for over 100 years. See K. Forde, Illinois’s New Class Action Statute, 59 Chi. B. Rec. 120 (1977) (explaining historical background of class actions). In their haste, perhaps, to take a stand on the class action question, my colleagues seemingly retreat from these time-honored principles and show a new hostility to a long-recognized form of litigation. I feel it is my duty to remind my colleagues that the same standards of review that are at play in the other four districts of the state apply to the Fifth District. I am concerned that today’s opinion sends a message that we, as a court, will employ different standards for cases coming out of the Fifth District on which national attention has been focused in order to reach a desired result. My feelings in this regard stem from the fact that in overturning the verdict in its entirety, my colleagues in this case have ignored the standard of review, humiliated plaintiffs’ counsel, and demeaned both the trial court and the appellate court. It is my sincere hope that the rhetoric employed in today’s opinion will not serve to further coarsen a debate already littered with incivility and hostility.

JUSTICE KILBRIDE joins in this partial concurrence and partial dissent.

Appendix A Sam DeFrank’s Estimate

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Appendix B State Farm's “Half Sheet”

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Appendix C State Farm’s “Quality Replacement Parts” Brochure

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On this topic I note that the court has accepted State Farm’s argument that its contractual guarantees to restore vehicles to their “pre-loss condition” and to perform repairs with parts of “like kind and quality” may be defined in terms of each other. See 216 Ill. 2d at 143-44. If the promises are fungible, as the court admits, then clearly plaintiffs could show that State Farm breached its promise to restore their vehicles to preloss condition by showing that State Farm was not using parts of “like kind and quality.”