Anderson v. Alberto-Culver USA, Inc.

• Court: Appellate Court of Illinois
• Citation: Anderson v. Alberto-Culver USA, Inc., 337 Ill. App. 3d 643, 789 N.E.2d 304, 273 Ill.Dec. 404 (Ill. App. 2003)
• Decision Date: 06 March 2003
• Docket Number: No. 1-01-2781., No. 1-01-2189
• Parties: Craig ANDERSON, Special Administrator of the Estate of Catherine Anderson, Plaintiff, v. ALBERTO-CULVER USA, INC., Aon Corporation, Village of Wheeling, City of Prospect Heights and Palwaukee Municipal Airport Commission, Defendants. Teresa P. Whitener, as Independent Administrator of the Estate of Robert Hampton Whitener, Plaintiff-Appellee, v. Aon Corporation and Aon Aviation, Inc., Defendants/Third-Party Plaintiffs-Appellants (The Estate of Martin L. Koppie, Defendant, v. Alberto-Culver Company and Alberto-Culver USA, Inc., Third-Party Defendants-Appellees). Jacqueline L. Quern, Independent Executor of the Estate of Arthur Quern, Plaintiff, v. Alberto-Culver USA, Inc., Aon Corporation, Village of Wheeling, City of Prospect Heights, and Palwaukee Municipal Airport Commission, Defendants. Kalyn Alwin and Devin Koppie, Co-Administrators of the Estate of Martin Larry Koppie, Plaintiffs, v. Village of Wheeling, City of Prospect Heights, Palwaukee Municipal Airport Commission, Alberto-Culver USA, Inc., Alberto-Culver International, Inc., Alberto-Culver Company, and Teresa P. Whitener, as Independent Administrator of the Estate of Robert Hampton Whitener, Defendants.

789 N.E.2d 304

337 Ill. App.3d 643

273 Ill.Dec. 404

Craig ANDERSON, Special Administrator of the Estate of Catherine Anderson, Plaintiff, v. ALBERTO-CULVER USA, INC., Aon Corporation, Village of Wheeling, City of Prospect Heights and Palwaukee Municipal Airport Commission, Defendants.

Teresa P. Whitener, as Independent Administrator of the Estate of Robert Hampton Whitener, Plaintiff-Appellee, v. Aon Corporation and Aon Aviation, Inc., Defendants/Third-Party Plaintiffs-Appellants (The Estate of Martin L. Koppie, Defendant, v. Alberto-Culver Company and Alberto-Culver USA, Inc., Third-Party Defendants-Appellees).

Jacqueline L. Quern, Independent Executor of the Estate of Arthur Quern, Plaintiff, v. Alberto-Culver USA, Inc., Aon Corporation, Village of Wheeling, City of Prospect Heights, and Palwaukee Municipal Airport Commission, Defendants.

Kalyn Alwin and Devin Koppie, Co-Administrators of the Estate of Martin Larry Koppie, Plaintiffs, v. Village of Wheeling, City of Prospect Heights, Palwaukee Municipal Airport Commission, Alberto-Culver USA, Inc., Alberto-Culver International, Inc., Alberto-Culver Company, and Teresa P. Whitener, as Independent Administrator of the Estate of Robert Hampton Whitener, Defendants.

Nos. 1-01-2189, 1-01-2781.

Appellate Court of Illinois, First District, Fourth Division.

March 6, 2003.

Rehearing Denied April 4, 2003.

Merlo, Kanofsky & Brinkmeier, Ltd., Chicago (Alan J. Brinkmeier, of counsel), for Appellants.

Adler, Murphy & McQuillen (Michael G. McQuillen, James F. Murphy and Thomas S. Flanigon, of counsel), for Appellee Albert-Culver.

Latherow Law Office, Chicago (Jerry A. Latherow and Charles A. Porretta, of counsel), and Michael W. Rathsack, Chicago, for Appellee Whitener.

Justice HARTMAN delivered the opinion of the court:

A private airplane crash at Palwaukee Municipal Airport (Palwaukee) outside Chicago resulted in the deaths of all four people aboard, including Martin Larry Koppie (Koppie), senior pilot and captain for defendant, Aon Aviation, Inc. (Aon Aviation); Robert Hampton Whitener (Whitener), pilot for defendants, Alberto-Culver USA, Inc., Alberto-Culver Company (Alberto-Culver Co.) and Alberto-Culver International, Inc. (collectively, Alberto defendants), the registered owner of the airplane; Arthur Quern, Chief Executive Officer and Chairman of the Board for Aon Risk Management, Inc.; and Catherine Mio Anderson, a flight attendant employed by Executive Jet, whose services were secured by Aon Aviation. Although each party brought multiple causes of action, inter alia, for wrongful death, survival, contribution and contractual indemnity, only the cases involving Whitener's and Koppie's Estates and the contribution claims between Alberto defendants and defendants, Aon Corporation (Aon Corp.) and Aon Aviation (collectively, Aon defendants), proceeded to a jury trial. The contribution claims were separated from the underlying wrongful death and survival claims, and were to be tried consecutively to the same jury following their verdict. The jury rendered a verdict in favor of Whitener's Estate and against Aon in the amount of $18,946,749; mistrials were declared as to all the remaining consolidated causes of action.

This case involved substantial technical facts and concepts, consumed 33 days for trial, at which 37 witnesses testified and over 915 exhibits were submitted, and required over 17,000 pages of record. Accordingly, the discussion of facts, issues and disposition requires extensive consideration and has been bifurcated into this opinion and a Supreme Court Rule 23 (166 Ill.2d R. 23 (Rule 23)) disposition, each being filed simultaneously with the other.

On January 24, 2001, the circuit court entered judgment on the jury verdict solely against Aon Corp. On July 12, 2001, the court granted Alberto defendants' emergency motion to correct the record and entered judgment, nunc pro tunc, January 24, 2001, against Aon Aviation, instead of Aon Corp.

On appeal, Aon defendants seek reversal of both the January 24, 2001 and July 12, 2001 circuit court orders and remandment for a new trial, alleging error and lack of jurisdiction; error with respect to the procedure allowing the estates' cases to proceed to verdict prior to the presentation of evidence regarding the contribution claims; and error in certain evidentiary findings, which will be decided in this opinion. The Rule 23 order will consider claims of error in certain other evidentiary findings, numerous alleged Supreme Court Rule 213 (177 Ill.2d R. 213 (Rule 213)) violations; error in the grant and refusal of certain jury instructions; error in denial of its motion to dismiss based upon Alberto defendants' failure to comply with a notice to produce; and error in the amount of the verdict. All technical terms and explanations contained in the opinion or order emanate from evidentiary sources contained in the record on appeal.

Aon Aviation and Alberto-Culver Co. each maintained a flight department at Palwaukee and each operated their own Gulfstream IV (GIV) aircraft, a twin engine jet that requires a two-pilot crew. On June 7, 1995, they entered into an Interchange Agreement, which permitted each to use the other corporation's GIV upon occasion. Both parties agreed, inter alia, to (1) "hold harmless and indemnify the other from loss, expense, damages, claims or suits which they might suffer as a result of any act or omission of the other party"; (2) maintain operational control¹ of their own GIV during use by the other party; and (3) purchase an aircraft insurance policy with a minimum $150,000,000 coverage when piloting each other's airplanes. Koppie, listed as chief pilot for Aon Aviation, signed the agreement twice for "Operational Control" and acceptance purposes.

On October 30, 1996, pursuant to the Interchange Agreement, an Alberto-Culver Co. GIV was scheduled to fly Aon's Quern from Wheeling, Illinois to Burbank, California. Only one Alberto-Culver Co. pilot, Whitener, was available, and Aon Aviation was advised of the need to supply an Aon Aviation pilot to complete the flight crew. Aon defendants chose to have a mixed flight crew that included one of their pilots and an Alberto-Culver Co. pilot. Koppie volunteered to be the Aon Aviation pilot. Whitener and Koppie had flown together in both the Alberto-Culver Co. and Aon Aviation GIVs on four prior occasions, during which each had acted as the "pilot in command" (PIC).² Both had extensive flying experience in different types of aircraft, including the GIV. Whitener logged 2000 and Koppie 500 hours of flight time in the GIV. The two pilots also were familiar with Palwaukee.

Prior to departure, Whitener prepared and filed a flight plan at a computer terminal in the Alberto-Culver Co. office, showing the proposed route. The plan listed Koppie as the PIC on the flight leg to Burbank and Whitener as the PIC on the return trip.

Koppie sat in the left pilot seat and Whitener in the right pilot seat. A cockpit voice recorder (CVR) recorded the pilots' completion of a pre-flight check of the aircraft, which included testing of the rudder, a vertical component of the tail that maintains side-to-side directional control.³

The pre-flight check also revealed the position of nosewheel steering select switch (NSSS), which allows the pilot to turn off rudder pedal steering to the nosewheel of the aircraft and limit steering of the nosewheel to the tiller, also known as a handwheel.⁴ Gulfstream installed the NSSS on the Alberto-Culver Co. airplane during the summer of 1995 pursuant to Aircraft Service Change 302 (ASC 302).⁵ Each pilot determines by preference whether to leave the NSSS in a "handwheel only" position, meaning no rudder pedal input could be provided to the nosewheel. Robert Fash, the Alberto-Culver Co. pilot who had flown the GIV to Palwaukee the night before the accident, left the NSSS in the handwheel only position.

Neither Koppie nor Whitener reported any problems with the aircraft during the pre-flight check. All flight controls were working normally when the aircraft taxied onto the runway for takeoff.⁶ When the flight was cleared for takeoff, strong and gusty crosswinds blew at 40 miles per hour from left to right across the departure runway.⁷ Nevertheless, the conditions were deemed safe for takeoff. The airplane began to roll down the runway, but started to veer to the left side of the runway in the middle of its takeoff roll. According to the National Transportation Safety Board (NTSB) report, the aircraft rolled onto the grass at the left side of the runway, traversing a shallow ditch that paralleled the runway, which resulted in the loss of the landing gear, flight control surfaces and other airplane components. The airplane then slid on its belly and became airborne after it encountered a small berm at the departure end of the runway. Once airborne, the airplane flew over Hintz Road, contacted an embankment along Wolf Road and skipped over Wolf Road, slid across a field and stream gully and came to rest on the edge of an apartment complex parking lot, where it was consumed by flames.⁸

The crash site was secured by police and then by the NTSB and FAA, and the debris evidence was transported and stored in a hangar at Palwaukee. The rudder actuator was identified in a photograph taken near the airplane's final resting place, but disappeared at some point during removal of the wreckage. The Wheeling Fire Department conducted an extensive search for the missing rudder actuator for eight days after the accident. Neither Alberto-Culver Co. nor Aon Aviation were involved in the search, nor were they responsible for securing and transporting the wreckage. The NTSB and local authorities were the only agencies that had control over the rudder actuator and other aircraft components when the wreckage was transported to the hangar.

Each of the four estates of the persons who perished in the accident filed wrongful death actions, which...