Bangaly v. Alfred C. Baggiani, Individually & of Roadway Express, Inc.

• Decision Date: 26 September 2014
• Docket Number: Nos. 1–12–3760,1–13–0729.,1–13–0624,s. 1–12–3760
• Citation: 20 N.E.3d 42,2014 IL App (1st) 123760,386 Ill.Dec. 181
• Parties: Sylla BANGALY, Administrator of the Estate of Hawa Sissoko, Deceased, Plaintiff–Appellant, v. Alfred C. BAGGIANI, Individually and as Agent and Employee of Roadway Express, Inc., a Delaware Corporation; Roadway Express, Inc., a Delaware Corporation, n/k/a YRC, a Wholly Owned Subsidiary of YRC Worldwide, Inc., a Delaware Corporation; and YRC Worldwide, Inc., a Delaware Corporation, Defendants–Appellees (Noumouke Keita, Intervenor–Appellant).
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 123760

20 N.E.3d 42

386 Ill.Dec. 181

Sylla BANGALY, Administrator of the Estate of Hawa Sissoko, Deceased, Plaintiff–Appellant,

v.Alfred C. BAGGIANI, Individually and as Agent and Employee of Roadway Express, Inc., a Delaware Corporation; Roadway Express, Inc., a Delaware Corporation, n/k/a YRC, a Wholly Owned Subsidiary of YRC Worldwide, Inc., a Delaware Corporation; and YRC Worldwide, Inc., a Delaware Corporation, Defendants–Appellees (Noumouke Keita, Intervenor–Appellant).

Nos. 1–12–3760

1–13–0624

1–13–0729.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 26, 2014.

William J. Harte, of Chicago, for appellant Sylla Bangaly.

Christopher Keleher, of Keleher Appellate Law Group, LLC, of Chicago, and Erik B. Lutwin, of Lutwin & Lutwin, LLP, of New York, New York, for appellant Noumouke Keita.

C. Barry Montgomery, Alyssa M. Reiter, and Hanson L. Williams, all of Williams, Montgomery & John, Ltd., of Chicago, for appellees.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 This is a unique wrongful death case of first impression where a jury returned a verdict of $4.25 million against defendants on behalf of the decedent's parents and eight siblings, and the trial court vacated the judgment on the verdict after hearing that the decedent was married at the time and then dismissed the case in its entirety. The decedent, Hawa Sissoko, a 28–year–old immigrant from the African country of Mali, was killed when a tractor trailer truck driven by defendant Alfred Baggiani struck her on the Indiana Tollway. Plaintiff Sylla Bangaly,¹ in his capacity as the administrator of Sissoko's estate, filed a wrongful death action against Baggiani, his employer Roadway Express, Inc., and Roadway Express' parent company YRC Worldwide, Inc. After a jury trial, the jury found defendants liable for Sissoko's death, awarding the estate $4.25 million in damages, and the trial court entered judgment on the verdict.

¶ 2 However, immediately prior to trial, defendants had discovered a potential issue with the wrongful death action, namely, who were the proper heirs to Sissoko's estate? The wrongful death action was brought on behalf of Sissoko's parents and eight siblings, based on an order of heirship entered by the probate court finding that Sissoko's parents and siblings were her only heirs; the order of heirship was in turn based on Bangaly's affidavit of heirship, in which he stated that Sissoko was never married. However, shortly before trial, defendants discovered that Sissoko may in fact have been married at the time of her death, to intervenor Noumouke Keita, a New York cabdriver whom she purportedly married via a proxy marriage in their home country of Mali. After an investigation by Bangaly's counsel, Bangaly produced a divorce decree sent from Sissoko's father in Mali purporting to show that Sissoko was divorced at the time of her death. Defendants sought to postpone the trial date to conduct further discovery as to the validity of the divorce decree but that request was denied and the matter proceeded to a jury trial.

¶ 3 After the trial, defendants renewed their request and filed a motion asking for postjudgment discovery concerning the issue of Sissoko's marriage. The trial court granted posttrial discovery to determine whether Sissoko and Keita were married at the time of her death. Initially, the focus of the marriage issue was the validity of the divorce decree; however, after Bangaly's expert concluded that the document was a forgery, Bangaly's focus shifted to the claim that Sissoko and Keita had never been legally married under Malian law. After a year of posttrial discovery, during which Keita for the first time intervened in the case,² the trial court found that Sissoko and Keita were validly married, and that the marriage was in effect at the time of Sissoko's death. Accordingly, the trial court found that Keita was the sole heir to Sissoko's estate. After the finding as to heirship, defendants filed a posttrial motion asking the court to vacate the judgment in its entirety and to dismiss the case with prejudice.

¶ 4 The trial court vacated both the liability and damages portions of the wrongful death verdict, finding that the fact of Sissoko's marriage would have had a substantial effect on the case that defendants presented as to both liability and damages. The trial court also removed Bangaly as administrator of Sissoko's estate, finding that Bangaly had not been acting in the best interest of the estate, but denied Keita's request to be named administrator in Bangaly's place. Additionally, the trial court denied Keita's request to amend the complaint and instead dismissed the case with prejudice, finding Keita's latency inexcusable, and further found that Keita and Sissoko's family had engaged in a fraud on the court. The court based its fraud finding on evidence that the two families had concealed Keita's existence until it was no longer possible to do so, and also pointed to the divorce decree, which was found to be fraudulent, and found that Keita only appeared in the case when the theory of divorce was no longer feasible.

¶ 5 Both Bangaly and Keita appeal. First, Bangaly claims: (1) the trial court erred in permitting posttrial discovery; (2) the trial court erred in allowing the testimony of defendants' expert on Malian law and in its limitation on the testimony of Bangaly's expert; (3) the trial court's ruling that defendants rebutted the presumption that Sissoko's parents and siblings were her heirs, as well as its conclusion that Sissoko and Keita were validly married, was against the manifest weight of the evidence; and (4) the trial court's finding that there was a conspiracy to commit fraud was not supported by the evidence in the record. Additionally, Keita claims: (1) that the trial court erred in dismissing the case with prejudice as to Keita because he had no part in any fraud on the court and his intervention was timely; (2) that the jury verdict as to liability should stand; and (3) that Keita should have been permitted to amend the pleadings and to be appointed administrator of Sissoko's estate. For the reasons that follow, we affirm in part and reverse in part.

¶ 6 BACKGROUND

¶ 7 I. Sissoko's Death and Her Estate

¶ 8 The underlying facts of Sissoko's death are undisputed and are not at issue on appeal. On May 30, 2007, Sissoko's vehicle was found stopped in the rightmost eastbound lane of I–80/90 near Chesterton, Indiana; Sissoko had exited the vehicle and was standing behind its trunk. Baggiani was driving a commercial tractor trailer truck loaded with nearly 27,000 pounds of freight eastbound down the same interstate in the course of his employment with Roadway Express. At approximately 11:10 a.m., Baggiani collided with Sissoko and her stopped vehicle, killing Sissoko instantaneously by crushing her between her vehicle and Baggiani's tractor trailer.

¶ 9 On November 21, 2007, Bangaly, Sissoko's paternal uncle, executed an affidavit of heirship, which stated that Sissoko's parents were both still living and that Sissoko had eight siblings. The affidavit of heirship further stated: "HAWA SISSOKO was never married and never had nor adopted any children during her lifetime." On the same day, the probate division of the circuit court of Cook County entered an order declaring that Sissoko's parents and siblings "are the only heirs of the decedent." On December 12, 2007, Bangaly was appointed independent administrator of Sissoko's estate.

¶ 10 II. Complaint and Pretrial Discovery

¶ 11 On December 27, 2007, Bangaly, in his capacity as administrator of Sissoko's estate, filed a lawsuit in state court in Indiana, alleging that Baggiani's negligent conduct caused Sissoko's death. The lawsuit was subsequently voluntarily dismissed, and on March 3, 2009, Bangaly filed the instant wrongful death lawsuit³ against defendants in the circuit court of Cook County. The complaint alleges that Baggianni's negligent operation of the tractor trailer caused Sissoko's death and further alleges "[t]hat HAWA SISSOKO left surviving her parents Diaguila [sic ] Sissoko and Goundo Dembele; and her brothers and sisters[,] * * * all of whom are lawful heirs of the Estate of HAWA SISSOKO."

¶ 12 On December 7, 2009, Bangaly filed answers to written interrogatories propounded by defendants. In response to the interrogatory, "If the deceased was married at the date of death, state the date and place of such marriage and the name and address of the spouse of deceased," Bangaly answered, "The Plaintiff's decedent was not married as of the date of her death." In response to the interrogatory, "If the deceased has previously been married, state the name(s) and last known address(es) of the former spouse(s), the date(s) of the marriage(s) and the date(s) of separation and/or divorce," Bangaly answered, "The Plaintiff's decedent had not been previously married before her death."

¶ 13 III. Defendants' Discovery of Sissoko's Marriage

¶ 14 On October 31, 2011, approximately two weeks before the November 14, 2011, date scheduled for trial, defendants filed an emergency motion to dismiss the complaint pursuant to section 2–619(a)(9) of the Code of Civil Procedure (the Code) ( 735 ILCS 5/2–619(a)(9) (West 2010)), or to strike the trial date. The motion claimed that while Bangaly had denied that Sissoko was ever married throughout his discovery responses, in fact, Sissoko had been married at the time of her death, as demonstrated by a marriage certificate found among Sissoko's personal belongings at the scene of the accident; defendants claimed that they had discovered Sissoko's marriage certificate on October 27, 2011, while preparing for the depositions of her parents.⁴ Defendants claimed that if Sissoko was survived by a spouse, then her parents and siblings could not maintain a wrongful death action and therefore, asked for a section 2–619(a)(9) dismissal of the complaint. Alternatively, defen...