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IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

GEORGE PAPPAS, individually and ) 

on behalf of all others similarly situated, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Case No. 1:20-cv-04205 

 ) 

AUTO CLUB INSURANCE ASSOCIATION, ) Judge: Manish S. Shah 

 ) 

 Defendant. ) 

ACIA’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS 

PLAINTIFF’S FIRST AMENDED CLASS ACTION COMPLAINT 

Defendant Auto Club Insurance Association ("ACIA") presents this Reply to Plaintiff’s 

Opposition to ACIA’s Motion to Dismiss: 

PLAINTIFF’S FIRST AMENDED COMPLAINT IS AN IMPROPER ATTEMPT 

TO URGE CLAIMS THAT WERE PREVIOUSLY DISMISSED BY THE COURT 

Plaintiff’s First Amended Class Action Complaint squarely ignores the rulings of this 

Court on Defendant’s original Motion to Dismiss. In his Opposition to Defendant’s Motion, 

Plaintiff focuses on the fact that the Court’s original dismissal of his claims was “without 

prejudice” in an attempt to justify the claims in his Amended Class Action Complaint. However, 

the Court’s dismissal without prejudice was not an invitation for Plaintiff to simply re-urge claims 

which mirror the original claims dismissed by the court – yet that is exactly what Pappas has 

done here. A simple side by side comparison of the Court’s June 18, 2020 dismissal order (Doc. 

32) to Plaintiff’s Opposition (Dkt. 20) may be the very best evidence that Plaintiff is before the 

Court seeking an improper second bite at the apple. 

Dismissal Order: “The Association’s liability for loss was limited to the lesser of the 

actual cash value or the cost of replacement...” (Doc. 32, p.3)(Emphasis added); and 
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 “The actual cash value was less than the cost of replacement or repair. That is what the 

Association paid...and the Association never contracted to pay anything more” (Id., p.4). 

Plaintiff’s Opposition: “...ACIA Promised To Pay Pappas the Cost To Replace His 

Totaled Vehicle And Failed to Do So.” “And, in doing so, ACIA breached the contract with 

Pappas.”(Dkt. 20, ¶I, p.6). 

 ** 

Dismissal Order: “Pappas’s proposed interpretation of the policy’s unambiguous terms is 

unreasonable.” (Doc 32, p.4)(Emphasis added); and 

“Since the policy is unambiguous, the Association’s post-collision communication is 

inadmissible to vary its terms.” (Id, p.6)(Emphasis added). 

Plaintiff’s Opposition: “ACIA’s failure to define these critical terms and inherent lack of 

clarity renders the policy ambiguous...” (Dkt. 20, ¶A, p.7); and 

“Any doubt about whether ACIA promised to pay...is removed by the fact that ACIA 

and its agents explicitly stated that it was paying Pappas for those costs in its post-accident 

correspondence.” (Id.) 

** 

Dismissal Order: “This policy caps the Association’s liability at the actual cash value of 

Pappas’s vehicle at the time of the collision. Just because other contracts promise make-whole 

remedies...does not mean that the Association is on the hook for registration, title, and license 

plate fees when its policy dictates a different limit (actual cash value) that is exclusive of those 

fees.” (Doc 32, p.5-6). 

Plaintiff’s Opposition: “ACIA IS Required To Pay Transfer And Title Fees As Part OF 

Its Obligation To Respond To A Total Loss Claim.” (Dkt. 20, ¶A, p.7); and 

“By Failing To Properly Pay The Full Amount OF Transfer And Title Fees, ACIA 

Failed To Meet Its Obligation Under The Policy.” (Id., ¶B, p.8). 

“By not paying the full amount of title and transfer fees, ACIA has failed to make 

Pappas whole and failed to meet its contractual obligations.” (Id., p.10). 

** 

Perhaps in filing his Amended Complaint Plaintiff assumed that a different court would 

be reviewing his second run at these previously-rejected claims, but that is indeed not the case. 
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This Court continues to have the case before it, and is faced with the exact same claims by Pappas 

that were already dismissed once by the Court. 

 Ironically, in his Opposition to ACIA’s New Motion to Dismiss, Plaintiff points out to the 

Court that Defendant ACIA has raised many of the same arguments as in its prior Motion to 

Dismiss which was granted by the Court. (Dkt. 20, p.1). It is true that Defendant’s Motion to 

Dismiss Plaintiff’s First Amended Class Action Complaint does raise many of the same 

arguments as in its previous motion to dismiss, but it does so only because Plaintiff’s Amended 

Complaint urges the same claims that have already been rejected by this Court. Plaintiff’s First 

Amended Class Action Complaint has few substantive differences from the original Class Action 

Complaint. Instead of attempting to assert different claims, Plaintiff is seeking another bite at the 

apple by raising the same claims that were previously dismissed and therefore his claims should 

be dismissed once again. 

PLAINTIFF IS INCORRECT IN HIS ASSERTION THAT ACIA OWED 

TRANSFER AND TITLE FEES AS PART OF ITS ACV SETTLEMENT WITH 

PLAINTIFF 

In Section I of his Opposition Plaintiff once again argues that ACIA was required to pay 

him “mandatory” transfer and title fees for his replacement vehicle. While Plaintiff is persistent 

in this argument, the fact remains that in previously dismissing Plaintiff’s claim for breach of 

contract, this Court correctly held that under Pappas’ insurance policy with ACIA, actual cash 

value (“ACV”) is determined based on “market value, age and condition”. (Doc. 32, p.4). The 

Court found Plaintiff’s argument that ACV includes all the fees that would have to be paid to the 

state to make the vehicle legal to drive, as being “unreasonable” and “not consistent with the 

plain, ordinary understanding of the terms “market value” or “age and condition”. Id. Thus, the 

Court held that ACV as defined in the policy does not include those fees. Id. 
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As stated in ACIA’s Motion to Dismiss, this finding by the Court in dismissing Plaintiff’s 

original claims is consistent with rulings by Judge Virginia M. Kendall in Coleman v. Garrison 

Prop. & Cas. Ins. Co., 2020 U.S. Dist. LEXIS 47120 (N.D. Ill. 3/18/2020, @7 (“the policy does 

not include sales tax and title transfer fees” in ACV); Mtn. To Alter Jdgmt. Denied, Coleman 2019 

U.S. Dist. LEXIS 127940 (N.D. Ill. 1/31/2020 at 8)(policy definition of ACV as the amount it 

would cost “to buy a comparable vehicle” is “limited to the purchase price of the vehicle itself and 

does not include attendant ‘replacement costs’ like sales tax, title fees, registration fees, or the 

like.”). 

Despite the clear language of the ACIA policy that ACV is determined by market value, 

age and condition, and despite this Court’s June 18, 2020 ruling that ACV does not include fees 

associated with the purchase of a replacement vehicle, Plaintiff continues to argue that “State title 

and transfer fees are part of the ACV because they are mandatory costs involved with the purchase 

of any replacement vehicle ...” and that ACIA still owes “mandatory fees” to Plaintiff (Amended 

Complaint, Dkt. 1-1, par. 5, 13, 51, 77, and 79; Plaintiff’s Opposition, Dkt. 20 ). 

If there was any doubt that this entire line of argument by Plaintiff is an attempt to merely 

re-litigate claims already dismissed by the Court, one need not look any further than the footnotes 

in Plaintiff’s Opposition. Specifically, footnote 4 to the Opposition is an acknowledgement by 

Plaintiff that he is seeking a new conclusion to issues that the Court has already ruled on, and 

found in ACIA’s favor. (Dkt. 20, p. 9). As this Court has previously held, ACIA did not owe 

transfer and title fees to Pappas as part of its ACV settlement, and therefore Pappas’ claims must 

be dismissed. 

 
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PLAINTIFF IS INCORRECT IN HIS ASSERTION THAT ACIA “PROMISED 

TO PAY” TRANSFER AND TITLE FEES AS PART OF ITS ACV SETTLEMENT 

WITH PLAINTIFF 

With regard to Plaintiff’s argument that ACIA “promised to pay” transfer and title fees as 

part of an ACV settlement, this Court has already determined that ACIA’s obligation under its 

insurance policy with Plaintiff is to pay the lesser of ACV or the amount necessary to replace the 

damaged vehicle. Plaintiff appears to equate ACV and replacement cost throughout his argument, 

but these are not one and the same. And since Plaintiff concedes that ACIA paid him the ACV 

of his vehicle, and this Court has found ACV does not include the mandatory state fees, this Court 

determined that ACIA has fulfilled its contractual obligation to Plaintiff. Thus, there is no breach 

of contract by ACIA. 

In holding that ACIA’s contractual liability is limited to the lesser of ACV or the amount 

necessary to replace the damaged vehicle, this Court cited to Coleman v. Garrison Prop. & Cas. 

Ins. Co., 2020 U.S. Dist. LEXIS 16439 (N.D. Ill. Jan. 30, 2020), Mtn. To Alter Jdgmt. denied 2020 

U.S. Dist. LEXIS 47120 (N.D. Ill. Mar. 18, 2020), a recent Northern District of Illinois case with 

similar facts and allegations to the case at bar. In Coleman, the Plaintiff argued that the 

Defendant’s failure to pay sales tax as part of a total loss settlement constituted a breach of the 

insurance contract. Id, at 2. The Honorable Virginia M. Kendall held that the policy “makes clear” 

that ACV “is the limit of (USAA’s) lability for total loss – not the amount it promises to pay in the 

event of total loss.” Id at 9. Thus, Judge Kendall granted Defendant’s Motion to Dismiss both the 

individual and putative class claims, stating “Because there is no language in the policy or the 

related letters that obligates Defendants to pay Plaintiff the ‘actual cash value’ of her vehicle in 

the event of a total loss, Plaintiff fails to state breach of contract claims against Defendants.” Id, at 

10. 
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The Seventh Circuit recently further clarified the “limit of liability” vs. “promise to pay” 

distinction. In Sigler v. Geico Cas. Co., et al, -- F.3d --, No. 19-2272, 2020 WL 4251699 (7th Cir. 

Jul. 24, 2020) the Seventh Circuit affirmed the District Court’s order dismissing the Plaintiff’s 

claims wherein Plaintiff asserted that sales tax, title and tag transfer fees are always part of actual 

cash value in a total loss claim; essentially the same argument made by Pappas herein. In its 

opinion, the Court stated that the Limit of Liability section of the insurance policy doesn’t promise 

to pay these costs; it simply describes the most that the insurer will pay in the event of a covered 

loss. The Seventh Circuit’s holding in Sigler is directly in line with this Court’s previous order 

finding that ACIA fulfilled its contract to Plaintiff, and dismissing Plaintiff’s claims. 

Interestingly, Plaintiff’s Opposition makes no mention of the Sigler decision, which had 

previously been filed by Defendant with its “Notice of Recent Decision.” Dkt. 13 and 13-1.

PLAINTIFF’S ATTEMPT TO PLACE AMBIGUITY IN ACIA’S INSURANCE 

POLICY WHERE NO SUCH AMBIGUITY EXISTS IS IMPROPER 

Likely realizing that established case law falls directly contrary to his arguments herein, 

Plaintiff devotes a portion of his Opposition to an argument that ACIA doesn’t properly define 

“total loss” or “cost of...replacement” in its insurance policy, allegedly causing a lack of clarity 

rendering the insurance policy ambiguous. (Dkt. 20, p. 7). This line of argument is in direct 

contradiction with the Court’s June 18, 2020 dismissal order which stated, in part, “Pappas’s 

proposed interpretation of the policy’s unambiguous terms is unreasonable.” (Doc. 32, 

p.4)(Emphasis added). In support of his spurious argument, Plaintiff also references postaccident correspondence between ACIA and Plaintiff for the proposition that this extrinsic 

evidence is equal to a “promise to pay.” Interestingly, once again the analysis need not proceed 

past Plaintiff’s footnotes to determine that these arguments are an attempt by Plaintiff to take a 

second bite of the apple in this case. In footnote 3 on page 7 of his opposition, Plaintiff 
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acknowledges that in its June 18th dismissal order this Court specifically concluded that this postaccident correspondence being raised once again by Plaintiff “is extrinsic to the express terms of 

the Policy and thus is not germane to contract construction.” (Dkt. 20, p.7, fnt3). In its Order, the 

Court stated that “Since the policy is unambiguous, the Association’s post-collision 

communication is inadmissible to vary its terms.” (Doc. 32, p. 6). In other words, the Court has 

previously found that ACIA’s insurance policy is not ambiguous and that ACIA has not breached 

its contract with Plaintiff. Where, as here, the meaning of the policy can be determined on the 

face of the policy, “it is unnecessary to consider the extrinsic documents plaintiffs point to in their 

brief generated subsequent to the issuance of the policy to assist in determining the policy's 

meaning.” Young v. Allstate Ins. Co., 812 N.E.2d 741, 749 (Ill.App. 1st Dist. 2004). There is 

simply no merit in revisiting these exact same issues a second time merely because Plaintiff did 

not like the results the first time they were presented to the Court and dismissed. 

DEFENDANT HAS NOT “ATTEMPTED TO ARTIFICIALLY LIMIT THE SCOPE 

OF THE CLASS” AS ALLEGED BY PLAINTIFF – PLAINTIFF’S CLAIMS DO NOT 

MEET THE REQUIRMENTS TO MAINTAIN A CLASS PURSUANT TO RULE 23 

To maintain a class action, a plaintiff "must affirmatively demonstrate [their] 

compliance with Rule 23." Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426 

(2013). Rule 23(d)(1)(D) authorizes the Court to strike class allegations where it is plain 

from the pleadings that class certification is inappropriate. See, e.g., Pilgrim v. Universal 

Health Card, LLC, 660 F.3d 943, 949 (6th Cir. 2011) (affirming District Court's granting of 

motion to strike class allegations); Vandenbrink v. State Farm Mut. Auto. Ins. Co., 2012 U.S. 

Dist. LEXIS 108696 at 8 (M.D. Fla. 2012) (striking class allegations where "Given the nature 

of the claims and individual factual inquiries required, it is apparent the individualized issues 

are predominant and this suit cannot proceed as a class action"). 
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In this case, Plaintiff seeks to certify a multi-state class of ACIA's insureds across at 

least eight different states (See Amended Complaint ¶¶5, 13, 30, 32, 44, 45, 47, 48, 64, 66(c) 

and 74). Plaintiff's proposed class involves the application of the laws from numerous states, 

as well as interpretation of insurance policy language in light of each of those state's laws, 

statutes and regulations, precluding any finding of commonality or predominance as required 

by Rule 23. Additionally, Plaintiff's Complaint does not assert sufficient facts concerning 

ACIA’s alleged conduct outside of Illinois to support the requirements of Rule 23. 

In his Opposition, Plaintiff makes the broad assumption that “While ACIA does not 

actually cite Bristol-Myers Squibb v Superior Ct. of Cal., San Francisco Cty., 137 S. Ct. 1773 

(2017), it is clear its standing argument, at least, is based on the same theory underlying that 

decision.” In making this statement, Plaintiff is apparently urging the Court to find that ACIA is 

merely pointing to Bristol-Myers blindly (and indirectly) and asserting that Pappas cannot 

represent any non-Illinois class members. (Dkt. 20, p. 11-13). While Defendant ACIA does find 

the Bristol-Myers holding persuasive and agrees with the general proposition that an Illinois 

Plaintiff lacks standing to represent a multi-state class of unnamed Plaintiffs, ACIA need not rely 

solely on a standing argument here, as a detailed analysis of the facts in this case illustrates that 

the substantive Rule 23 issues also fall squarely in line with ACIA’s Motion to Dismiss. 

Continuing his argument, Plaintiff relies on the Seventh Circuit’s decision in Mussat v. IQVIA, 

Inc., 953 F. 3d 441 (7th Cir. 2020) for the proposition that ACIA’s Motion should be denied. 

Plaintiff’s reliance on Mussat is inapplicable to the case at hand. In Mussat, the Court specifically 

held that in a Rule 23 class action a lead plaintiff earns the right to represent the interests of 

absent class members “by satisfying all four criteria of Rule 23(a) and one branch of Rule 

23(b).” Id., at 447 (emphasis added). This case is clearly distinguishable as ACIA has shown 
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that Plaintiff’s Amended Complaint does not assert sufficient facts concerning ACIA’s conduct 

outside of Illinois to meet the requirements of Rule 23. Mussat is further distinguishable because 

unlike the present case, it involved a question of personal jurisdiction over a purported 

nationwide class brought under a federal statute which applied the same in every state. Here, 

Pappas is an Illinois resident suing ACIA for the breach of an Illinois insurance policy under 

Illinois law. Pappas simply has no standing to sue on behalf of unnamed plaintiffs for violations 

of other states’ varying insurance laws and interpreting other states’ insurance policies. 

Plaintiff's Amended Complaint does not allege any specific facts concerning ACIA's 

alleged conduct across multiple states, or the proposed multi-state class members' actual 

entitlement to state fees sufficient to establish the requirements of Rule 23. See Bauer v. Dean 

Morris, L.L.P., Civil Action No. 08-5013, 08-5014, 2011 WL 3924963, at *2 (E.D. La. Sept. 7, 

2011) ("[c]lass allegations may be Dismissed where a complaint fails to plead the minimum facts 

necessary to establish the existence of a class satisfying Rule 23's mandate"). The only specific 

factual allegations presented in Plaintiff’s Amended Complaint concern ACIA's alleged conduct 

in Illinois and pertain exclusively to the proposed Illinois-based class. For example, Plaintiff 

cites to specific insurance policy forms issued in Illinois (See Amended Complaint ¶ 31), and 

then issues a blanket allegation that on information and belief the form “is a standard policy form 

that has been used ACIA [sic] for its Automobile Insurance Policies across the states in which it 

provides coverage.” Amended Complaint ¶32. This statement is nothing more than speculation 

and conjecture in an attempt to create an improper multi-state class. Further, while Plaintiff does 

include a broad statement that “at least twenty-eight states, including Illinois, specifically 

require, through applicable statute or regulation, that insurers pay all monetary title and transfer 

fees in connection with a total loss” the footnote to this statement indicates that four of the eight 
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states included in Plaintiff’s putative class (Michigan, New York, Pennsylvania and Wisconsin) 

do not maintain such requirements. See Amended Complaint ¶ 47, n.4. Plaintiff fails to identify 

any authority for the proposition that title and transfer fees are in fact owed as part of the 

replacement of vehicles in half of the eight states in which Plaintiff indicates ACIA writes 

insurance policies and whose insureds are part of the proposed class. In a case with very similar 

allegations to this case, the United States District Court for the Middle District of Florida denied 

certification of a proposed eight-state class when Plaintiff failed to provide citations or authority 

“showing that each state charged mandatory tag and title transfer fees – a prerequisite to a claim 

that Defendants owed putative class members such fees” See Jones v. Government Employees 

Ins. Co., 2019 WL 1490703 at 8. (M.D. Fla. 2019). 

Plaintiff’s reliance on Bandurin v. Aeroflat Russian Airlines, 2020 WL 362781 (N.D. Ill. 

Jan. 22, 2020) is misguided here. Plaintiff generalizes that ACIA’s “attack on the scope of the 

class is premature” and pulls one sentence out of Bandurin in an attempt to support his argument. 

However, the comment made by this Court in Bandurin, “that is not an issue I need to address 

at the motion-to-dismiss stage of the case” was in response to the Defendant’s motion to strike 

the plaintiffs’ class definitions on the basis that they were overly broad and therefore the court 

lacked personal jurisdiction (Id., p.11). In this case ACIA is not merely arguing Pappas lacks 

standing due to overbreadth of a class definition. To the contrary, ACIA has shown that 

Plaintiff's Amended Complaint does not allege any specific facts concerning ACIA's alleged 

conduct across multiple states, or the proposed multi-state class members' actual entitlement to 

recovery sufficient to establish the requirements of Rule 23. These are two separate arguments, 

and Bandurin is not applicable to Defendant’s 12(b)(6) claims. 
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Plaintiff's Complaint fails to include anything but conclusory allegations concerning 

ACIA's conduct outside of Illinois. Plaintiff fails to identify any other insured who had a claim 

outside of Illinois or to whom ACIA failed to pay applicable fees. In sum, Plaintiff's Complaint, 

therefore, does not comply with Mussat “by satisfying all four criteria of Rule 23(a) and one 

branch of Rule 23(b)” and therefore Plaintiff's claims on behalf of the multi-state class should be 

dismissed. 

 

Respectfully submitted this 14th day of September, 2020. 

/s Nick Papastratakos 

Nick Papastratakos (6194210) 

Hilbert & Power, Ltd. 

77 West Washington Street 

Suite 1217 

Chicago, Illinois 60602 

Attorneys for Auto Club Insurance Association