1 

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. ) 

 

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO 

DISMISS PLAINTIFF'S FIRST AMENDED CLASS ACTION COMPLAINT OR IN THE 

ALTERNATIVE, TO DISMISS PLAINTIFF’S ACTUAL CASH VALUE CLAIMS 

AND/OR MULTI-STATE CLASS ALLEGATIONS 

Defendant Auto Club Insurance Association ("ACIA") presents this Memorandum of 

Law in support of its Motion to Dismiss Plaintiff’s First Amended Class Action Complaint 

(“Amended Complaint”)(Exh. A to Doc.1-1) 1 pursuant to Federal Rules of Civil Procedure 

(“FRCP”) 12(b)(6) and 12(b)(1), or in the alternative, to dismiss the allegations relating to the 

payment of actual cash value (“ACV”) and/or to dismiss the multi-state class allegations in 

Plaintiff’s Complaint pursuant to FRCP 23. In support of its Motion, ACIA offers the following. 

I. INTRODUCTION 

ACIA issued an automobile insurance policy to Plaintiff. Amended Complaint, ¶. 2. Under 

the Limit of Liability provision of Part V – Car Damage Coverages of the Policy, ACIA’s limit 

of liability to Plaintiff “shall not exceed the lesser of: (1) ACV at the time of loss of the damaged 

property; or (2) the amount necessary to repair or replace the damaged property; or (3) any 

applicable Limit of Liability shown on the Declaration Certificate. (Amended Complaint ¶. 39). 

1

 All references herein to Court Doc. numbers are to Court documents in Case # 1:20-cv-00983, except the 

Amended Complaint, which is Exhibit A to Doc. 1-1 in Case # 1:20-cv-04205. 

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The policy provides that ACV “is determined by market value, age and condition at the time the 

loss occurred. ...” (Amended Complaint ¶. 40). 

 On August 6, 2019, Plaintiff’s vehicle was involved in an accident, which rendered the 

vehicle a total loss. Amended Complaint ¶ 55. ACIA paid Plaintiff the ACV of his vehicle, along 

with 7.25% sales tax on that amount and a title fee of $120.00. Amended Complaint ¶ 59. 

Plaintiff filed a purported Class Action Complaint (“Original Complaint”) (Doc. 1-1) 

alleging Breach of Contract (Original Complaint, Count I, ¶¶ 58 – 70), and Unjust Enrichment 

(In the Alternative)(Count II, Original Complaint ¶¶ 71 – 77). Plaintiff’s Breach of Contract 

claim was based on Plaintiff’s allegation that when paying a first party automobile total loss 

claims, ACIA owed the Plaintiff and the purported class members the ACV of their vehicles or 

the amount necessary to repair or replace the damaged vehicle with another of like kind and 

quality, along with mandatory title, registration and license plate fees and taxes.. (Original 

Complaint ¶¶ 43, 65, 67). Plaintiff claimed that ACIA failed to pay these fees. (Original 

Complaint ¶¶68, 69). Plaintiff further alleged that ACIA was unjustly enriched by the alleged 

failure to pay the full amount of fees involved with the purchase of a replacement vehicle. 

(Original Complaint ¶ 74). 

 On June 18, 2020, this Court entered an Order dismissing Plaintiff’s Original Complaint. 

Doc #32. Plaintiff in turn filed his First Amended Class Action Complaint in the Illinois state 

court where his Original Complaint had been filed. ACIA removed the Amended Complaint back 

to Federal Court. The case has since been assigned to this Court and Defendant now files its 

Motion to Dismiss Plaintiff’s Amended Complaint and this Memorandum in support thereof. 

II. PLAINTIFF IS ATTEMPTING TO RE-LITIGATE THE VERY CLAIMS 

THAT THIS COURT HAS ALREADY DISMISSED 

IN ITS JUNE 18, 2020 ORDER 

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In reviewing Plaintiff’s Amended Complaint, it is apparent that Plaintiff, dissatisfied with 

this Court’s June 18, 2020, Order dismissing Plaintiff’s claims, is now attempting to take a 

second bite of the same apple, asserting the same claims that have already been dismissed once 

by this Court. For this reason, Defendant requests that the Court once again dismiss those claims. 

In the Court’s June 18, 2020, Order (Doc. #32) dismissing Plaintiff’s claims, the Court held 

in relevant part that: 

- ACIA’s liability to Plaintiff under its policy was limited to the lesser of ACV or the 

amount necessary to replace the vehicle. Id., p.3. 

- ACV, as defined in the ACIA policy, is determined by market value, age and condition, 

and does not include title and other fees associated with purchasing a replacement 

vehicle. Id. p.4-5 (emphasis added). 

- Because ACIA’s policy specifically limits ACIA’s liability to the lesser of ACV or the 

amount necessary to replace a vehicle, and ACIA paid Plaintiff the ACV of the vehicle, 

ACIA had fulfilled its contractual obligation to Plaintiff. Id (emphasis added); 

- Under the Illinois Administrative Code (“Code”), in the event of a total loss and if the 

policy provides for settling of claims on an ACV or replacement cost basis, the insurer is 

required to select between providing a replacement vehicle, or paying a cash settlement 

(ACV). Id. p. 6 - 7. 

- If the insurer provides a cash settlement and the insured purchases a replacement vehicle 

in compliance with Code requirements, the insurer has to reimburse the insured for 

applicable sales tax and transfer and title fees incurred. Id. p.6. 

- ACIA “complied with the Code by adding sales tax and a title fee to cash value to arrive 

at the settlement it paid Pappas.” Id. p.7; 

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- Neither the Code not the ACIA policy require ACIA to pay registration and license plate 

fees that were demanded in Pappas’ initial Class Action Complaint. Id. p.7; 

- Pappas’ Complaint did not state a claim for breach of his contract, and was therefore 

dismissed without prejudice. Id. 

- Plaintiff’s claim for unjust enrichment rested on the same conduct alleged in his breach 

of contract claim. As such, the unjust enrichment claim stood or fell with the breach of 

contract claim. For the reasons that there was no breach of contract, there is also no unjust 

enrichment. Id. p.8; 

Plaintiff’s Amended Complaint has few substantive differences from the Original Complaint 

that was previously dismissed by this Court. Interestingly, although this Court has already ruled 

in its June 18, 2020 order that ACV does not include title and other fees associated with 

purchasing a replacement vehicle, throughout the Amended Complaint Plaintiff attempts to 

categorize these same fees as “mandatory costs” or “mandatory fees” allegedly part of ACV: 

- “State title and transfer fees are part of the ACV because they are mandatory costs 

involved with the purchase of any replacement vehicle in Illinois and in many other 

states.” Amended Complaint ¶ 5. 

- State title and transfer fees are part of the amount necessary to replace the vehicle 

“because they are mandatory costs involved with the purchase of any vehicle in Illinois 

and many other states, and therefore part of the replacement cost of any vehicle.” Id. @ 

¶. 6. 

- ACIA must pay “mandatory state fees for a replacement vehicle” either as part of the cost 

to replace the vehicle as promised by ACIA, or as a component of ACV, or by virtue of 

the Code. Id. @ ¶. 13. 

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- While ACIA paid some fee amount, it failed to pay the full amount of state title and 

transfer fees involved with the purchase of a replacement vehicle, thus breaching its 

contract. Id. ¶. 15. 

- The lawsuit is brought on behalf of Plaintiff and on behalf of a class, “the members of 

which were not paid the full costs of mandatory state fees as part of their total loss 

claims.” Id. ¶¶ 19 and 64. 

- By failing to pay the full amount of the mandatory state vehicle replacement fees, ACIA 

breached its contract with Plaintiff and the purported class members, and was unjustly 

enriched. Id. ¶¶ 53, 63, 78 and 79; 

- Title fees and transfer fees are a mandatory part of a vehicle’s purchase price, and “thus 

are items which ACIA was contractually obligated to pay. Id. ¶. 60; 

- Plaintiff and purported class members were owed the ACV or amount necessary to 

replace their damaged vehicle, “along with mandatory state fees, so they could replace 

their totaled vehicle. Id. ¶. 77. 

- ACIA was unjustly enriched by failing to pay the full amount of mandatory state fees 

involved with the purchase of a replacement vehicle. Id. ¶. 84. 

In numerous instances throughout the Amended Complaint, Plaintiff alleges that ACIA is 

liable for failing to pay “mandatory” taxes and fees that this Court has previously held are not 

“mandatory” and in fact are not owed by ACIA at all. He even erroneously defines the purported 

class as centered around these alleged “mandatory” fees. The proposed class definition cannot 

be sustained as it is contrary to this Court’s prior holding. Although the Amended Complaint 

generally refers to “transfer fees” as part of Plaintiff’s alleged claims, no evidence has been 

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presented to the Court that Plaintiff incurred such fees. Plaintiff is clearly attempting to re-litigate 

the claims that this Court has already dismissed once. 

By paying Plaintiff ACV for his total loss, ACIA has fulfilled its contractual obligation to 

Plaintiff. Therefore, his claim for breach of contract should again be dismissed. Furthermore, 

because Plaintiff’s claim for unjust enrichment rests on the same conduct alleged in the breach 

of contract claim, this claim should likewise be dismissed again. 

Finally, Plaintiff’s multi-state class allegations should also be dismissed because 

Plaintiff cannot bring claims on behalf of a multi-state class that is defined as those who were 

not paid fees that this Court has already ruled are not owed by ACIA, and where the Complaint 

lacks sufficient factual allegations to support any multi-state class. Plaintiff incorrectly asserts 

that the purported claims present common questions of law and fact which are appropriate for 

class wide disposition. Additionally, Plaintiff lacks standing to bring an action under the laws 

of any state other than Illinois. For these reasons, Plaintiff’s allegations for any claims beyond 

the state of Illinois should be dismissed. 

A. AS PREVIOUSLY DETERMINED BY THIS COURT, PLAINTIFF’S 

CLAIMS MUST BE DISMISSED AS ACV PAYMENTS UNDER ACIA’S 

POLICY AND ILLINOIS LAW DO NOT INCLUDE PAYMENT OF FEES 

In previously dismissing Plaintiff’s claim for breach of contract, this Court correctly held 

that under ACIA’s policy, 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 ACV as defined in the policy does not include those fees. Id. 

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The determination that ACV does not include fees and taxes associated with the 

replacement of a vehicle, is consistent with rulings by Judge Virginia M. Kendall in Coleman v. 

Garrison P&C 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); and Coleman v. Garrison P&C Ins. 

Co., 2019 U.S. Dist. LEXIS 127940 (N.D. Ill. 7/31/19) @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 ¶¶. 5, 13, 51, 77, and 79). 

As this Court did with the breach of contract claim in Plaintiff’s Original Complaint, the 

Court should dismiss Plaintiff’s breach of contract claims in his Amended Complaint which are 

based on any alleged underpayment of ACV. 

B. PLAINTIFF’S CLAIMS MUST BE DISMISSED AS ACV OR “AMOUNT 

NECESSARY TO ... REPLACE” IS THE LIMIT OF ACIA’S LIABILITY 

FOR TOTAL LOSS – NOT THE AMOUNT IT PROMISED TO PAY IN 

THE EVENT OF TOTAL LOSS 

As in his Original Complaint, Plaintiff alleges in his Amended Complaint that ACIA has 

breached its insurance contract by failing to pay mandatory state fees for the replacement of a 

vehicle. (See Amended Complaint ¶¶ 13, 15, 51, 53, 60, 63, 66(b), 77, 78, 79 and 84). 

However, this Court has already determined that ACIA’s obligation under its policy with 

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Plaintiff is to pay the lesser of ACV or the amount necessary to replace the damaged vehicle. 

Since Plaintiff concedes that ACIA paid him the ACV of his vehicle, and 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 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. 2020 

U.S. Dist. LEXIS 16439 @ 2. Judge 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 with prejudice 

both the individual and putative class claims in the amended complaint, 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. ACIA asks the Court to follow Judge Kendall’s 

holding and to dismiss Plaintiff’s claims in the Amended Complaint in their entirety. 

C. PLAINTIFF'S MULTI-STATE CLASS CLAIMS SHOULD BE DISMISSED 

BECAUSE THE PLAINTIFF’S AMENDED COMPLAINT DOES NOT 

MEET THE REQUIREMENTS FOR CLASS CERTIFICATION. 

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 

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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"). 

Although ambiguous on this issue, it appears that in the Amended Complaint Plaintiff 

seeks to certify a multi-state class of ACIA's insureds across either six or fifty different states 

(See Amended Complaint ¶¶5, 13, 25, 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. 

1. DIFFERENCES IN STATE LAW AND THE REQUIREMENT OF 

INDIVIDUALIZED CLASS MEMBER PROOF PRECLUDE 

CERTIFICATION OF PLAINTIFF’S PROPOSED MULTI-STATE 

CLASS. 

Plaintiff attempts to characterize his proposed multi-state class action as a matter of 

basic contract interpretation that will be uniform for all class members in the various states. 

See Amended Complaint ¶ 66(c). Contrary to Plaintiff's assertions, however, the contracts 

(ACIA's insurance policies) that this action is based on must be interpreted in light of, the laws, 

statutes and regulations of the various states in which those contracts are issued. This requires 

individualized inquiries into, and the application of, various states' laws governing ACIA's 

obligations with respect to the settlement of individual total loss claims. Further, the proposed 

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multi-state class would necessitate presentation of individualized class-member proof to 

support the alleged claims. These factors preclude any finding of commonalty and 

predominance in this action as required by Rule 23, and render Plaintiffs class definition 

inherently overbroad and inappropriate. In re Motions to Certify Classes Against Court 

Reporting Firms for Charges Relating to Word Indices, 715 F. Supp. 2d 1265, 1274 (S.D. Fla. 

2010) (discussing requirements under Rule 23(a) and Rule 23(b)(3) and stating that to maintain 

a multi-state class action, a plaintiff must demonstrate "common questions of law or fact" that 

"predominate over any questions affecting only individual members"). 

A. Differences in state insurance laws prevent certification of Plaintiffs 

proposed multi-state class claims. 

If Plaintiff’s multi-state class allegations are not dismissed, adjudication of this case 

would require the Court’s analysis and application of the varying insurance laws of numerous 

states where proposed class members reside. The differences in each state's insurance laws, 

statutes and regulations destroy any possible finding of commonality and predominance with 

respect to the proposed multi-state class. See, Klay v. Humana, Inc., 382 F.3d 1241, 1261 (11th

Cir. 2004) ("Variations in state law may swamp any common issues and defeat 

predominance."); see also, In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1015 (7th Cir. 

2002) (reversing certification of multi-state class and noting "[n]o class action is proper unless 

all litigants are governed by the same legal rules"). 

Each state has its own unique body of insurance law codified in common law, statutes, 

regulations and administrative guidance that governs an insurer’s obligations with respect to the 

settlement of insurance claims. See, Peoples v. Am. Fid. Life Ins. Co., 176 F.R.D. 637, 642 (N.D. 

Fla. 1998) ("[t]here is no federal insurance code; each State has its own insurance code, as well 

as its own Department of Insurance which in turn has its own administrative regulations"). 

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Courts generally find the variations in insurance laws across states make actions that require 

application of those laws ill-suited for class treatments. See Id. (denying certification of multistate class against insurer finding the determination of plaintiffs' multi-state claims would 

require analysis of "the law of each jurisdiction where the product was sold" to determine 

"whether the actions complained of were indeed unlawful...a question of tremendous 

complexity and difficulty"); see also, Hammett v. American Bankers Insurance Co., 203 F.R.D. 

690, 701 (S.D. Fla. 2001)(denying class certification and noting "there is little uniformity with 

respect to state [insurance] laws governing whether Defendants are in breach"). 

In order to determine whether ACIA breached its contract and was unjustly enriched, 

each applicable state’s statutes and common law would need to be individually analyzed across 

every claim. States take varied approaches regarding whether insurers are obligated to pay 

state fees as part of total loss settlements. For example, certain states statutes appear to require 

insurers to include sales taxes in certain circumstances when determining ACV on an auto total 

loss, but not to include title transfer fees: See, N.Y. Comp. Codes R. & Regs. Tit. 11 § 

216.6(b)(2)(1982), and NY OGC Opinion No. 08-10-13 ("an insurance company is not required 

under New York Insurance Law or regulations promulgated thereunder to include title transfer 

costs associated with the purchase of a replacement vehicle in determining the actual cash 

value of a motor vehicle that suffered a total loss"); and, N.J. Admin. Code § 11:3-10.4 (requires 

ACV payment plus applicable sales tax); while other states requires payment of taxes and fees, 

see, Ala. Admin. Code r. 482-1-125-.08(b) (cash settlements are based on “actual cost ... to 

purchase comparable vehicle, including applicable taxes and license fees and other fees incident 

to the transfer of ownership). On the other hand, Illinois only requires the payment of sales 

taxes and transfer and title fees after the insured actually replaces the vehicle. See, Ill. Admin. 

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Code tit. 50 § 919.80(c)(3)(A)(i). Even in states that require the payment of state fees, the type 

and amount of fees insurers are obligated to pay will vary based on differing state laws. 

The differences in state statutes and regulations preclude certification of Plaintiffs 

proposed multi-state class. See, In re Am. Med. Sys., Inc., 75 F.3d 1069, 1085 (6th Cir. 1996) 

(denying certification and finding "[i]f more than a few of the laws of the fifty states differ, 

the district judge would face an impossible task of instructing a jury on the relevant law, yet 

another reason why class certification would not be the appropriate course of action."). 

B. The necessity of individualized class member proof precludes 

certification of Plaintiff's proposed multi-state class. 

The individualized proof necessary to establish breach of contract pursuant to the varying 

state laws where the putative class members reside also renders it impossible for common 

questions of law and fact to predominate in this case. Class members in states where fees and/or 

taxes are only paid if the insured purchases a replacement vehicle within a certain period of time, 

will have to submit proof that they in fact complied with their respective state law requirements. 

In states where potential state fees are calculated based on the age, weight and/or price of the 

insured’s vehicle, each class member will have to submit individualized documentation 

regarding the characteristics and value of their vehicles, and the calculations would then have to 

be made class member-by-class member based on each such state’s guidelines. Absent this 

extremely individualized proof, class members cannot establish the requirements of their causes 

of action - that ACIA had a duty to pay state fees to each class member in each state and that 

ACIA breached that duty. These individualized inquires and the proof necessary to establish 

Plaintiff and the proposed multi-state class member’s claims will result in mini-trials not only 

with respect to liability to each class member, but also with respect to the amount of potential 

damages for each putative class member. 

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There is simply no set of proof common to the entire multi-state class that could be 

presented to establish the elements of Plaintiff’s causes of action. This lack of common proof 

and the requirement of intense individualized inquiries that would predominate this action 

make Plaintiff’s proposed multi-state class claims inappropriate. See, Chilton Water Auth. v. 

Shell Oil Co., No. Civ. A. 98-T-1452-N, 1999 WL 1628000, at 6-8 (M.D. Ala. May 21, 1999) 

(granting motion to strike class allegations because multi-state class of fraud, negligence, and 

punitive damages claims declared unmanageable due to differences in state law). 

Furthermore, Plaintiff's proposed multi-state class includes individuals who were not harmed 

by ACIA such as policy holders in states like New York. See, OGC OP. No. 08-10-13, quoted 

infra at page 11, as finding that under New York law, insurers are not required to include title 

transfer costs when determining ACV on auto total losses. Class certification is properly 

denied where the purported class "impermissibly includes members who have no cause of 

action as a matter of law"). Walewski v. Zenimax Media, Inc., 502 F. App'x 857, 861 (11th 

Cir. 2012). Plaintiff's multi-state class allegations should, therefore, be dismissed. 

2. THE AMENDED COMPLAINT FAILS TO ALLEGE SUFFICIENT 

FACTS TO SUPPORT THE PROPOSED MULTI-STATE CLASS. 

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"); Bissessur v. Ind. 

Univ. Bd. of Trs., 581 F.3d 599, 602 (7th Cir. 2009)(“(A) complaint stating only "bare legal 

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conclusions," even under notice pleading standards, is not enough to survive a Rule 

12(b)(6) motion... The complaint must contain "enough facts to state a claim to relief that is 

plausible on its face" and also must state sufficient facts to raise a plaintiff's right to relief above 

the speculative level”); and, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 

L. Ed. 2d 929 (2007)(“an allegation of parallel conduct and a bare assertion of conspiracy will not 

suffice”).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 twentyeight 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 six states in which ACIA writes auto insurance do not 

maintain such requirements. See Amended Complaint ¶¶, 25, 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 four of the six states in which ACIA writes insurance policies and 

whose insureds would be 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 

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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 Amended 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. Plaintiff's Amended Complaint, therefore, does not adequately allege multistate conduct by ACIA or the relevant law applicable to the proposed multi-state class, and 

Plaintiff's claims on behalf of the multi-state class should be dismissed. 

D. PLAINTIFF LACKS STANDING TO REPRESENT THE PROPOSED 

MULTI-STATE CLASS. 

 Plaintiff’s attempt to allege a multi-state class must also fail as Plaintiff lacks standing to 

present the claims of any class member outside the State of Illinois. Plaintiff, an Illinois resident, 

does not have standing to represent any non-Illinois class members whose claims are based on 

non-Illinois law. See, Schultz v. Am. Family Mut. Ins. Co., 2005 U.S. Dist. LEXIS 38848, 2005 

WL 5909003, (N.D. Ill 2005) (dismissing any class claims based on violation of wage laws of any 

states other than Illinois where the only named Plaintiff lacked standing to sue for violations of 

other states’ statutes). See also Clark v. Aaron's, Inc., 914 F. Supp. 2d 1301, 1311 (N.D. Ga. 2012) 

(dismissing claims on behalf of proposed subclasses due to named Plaintiff’s lack of standing). 

For these reasons, Plaintiff lacks standing to bring the proposed multi-state class claims and these 

claims should therefore be dismissed. 

CONCLUSION 

 For the foregoing reasons, ACIA respectfully requests that this Court dismiss Plaintiff’s 

Complaint with prejudice, or in the alternative, dismiss with prejudice Plaintiff’s allegations 

regarding the payment of actual cash value and Plaintiff’s multi-state allegations. 

Respectfully submitted this 23rd day of July, 2020. 

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/s Nick Papastratakos 

Nick Papastratakos (6194210) 

Hilbert & Power, Ltd. 

77 West Washington Street 

Suite 1217 

Chicago, Illinois 60602 

Attorneys for Auto Club Insurance Association

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