Don't give away any evidence until after you've won the case.
That's the most obvious lesson to take from a decision out of the Seventh Circuit Court of Appeals, dismissing a lawsuit against Geico after the plaintiff gave away the car at the center of the case.
In 2002, Steven Greenberger got into an accident while driving his 1994 Acura. The car's bumper, steering box, suspension, and lower body were all damaged in the crash. The day after the accident, an adjuster for Geico examined the car and wrote Greenberger a check for $3,284.
Soon thereafter, Greenberger got an estimate for the repairs, and discovered that they would actually cost around $4,940. He ended up giving the car to a charity, without ever making the repairs.
After giving his car away, Greenberger filed suit, alleging common law fraud and violations of the Illinois Consumer Fraud and Deceptive Practices Act.
No car, no suit
Greenberger's suit, which sought class status, alleged, in the court's words, that Geico “systematically underpays on its auto-accident claims by omitting necessary repairs from vehicle-damage estimates,” which Greenberger said “violates GEICO's contractual promise to restore the insured's vehicle to its preloss condition and constitutes statutory and common-law fraud.”
Alas, the court ruled, the fact that the one piece of physical evidence -- Greenberger's car -- is long gone means that the suit cannot proceed.
“Greenberger gave away his car, and without it, he cannot prove that what Geico paid him was inadequate to restore the car to its pre-loss condition,” the court wrote in its opinion.
The court cited Avery v. State Farm, a decision out of the Illinois Supreme Court, in ruling that Greenberger could not preclude on his claim.
“Among other important holdings, Avery established the common-sense proposition that a policyholder's suit against his insurer for breach of its promise to restore his collision-damaged car to its pre-loss condition cannot succeed without an examination of the car,” the court wrote.
Knowledgeable plaintiff
Perhaps the most regrettable aspect of the decision, at least from Greenberger's perspective, is that he should have known better. A licensed attorney, Greenberger graduated from Yale Law School and currently works as an Associate Professor -- and Associate Dean -- at DePaul Law School in Chicago. According to his official biography, Greenberger once worked as a clerk for the Seventh Circuit -- the court that eventually threw out his case.
