Cushing v. Greyhound Lines, Inc.

• Decision Date: 10 February 2012
• Docket Number: No. 1–10–0768.,1–10–0768.
• Citation: 965 N.E.2d 1215
• Parties: F. John CUSHING, Administrator de bonis non of the Estate of Claudia Zvunca, Deceased, Plaintiff–Appellant v. GREYHOUND LINES, INC. and Motor Coach Industries International, Inc., Defendants–Appellants (Cristina Zvunca, a Minor, By Her Guardian ad litem, David J. Gubbins, Plaintiff; Wesley Jay Tatum, Defendant).
• Court: United States Appellate Court of Illinois

965 N.E.2d 1215

F. John CUSHING, Administrator de bonis non of the Estate of Claudia Zvunca, Deceased, Plaintiff–Appellant
v.
GREYHOUND LINES, INC. and Motor Coach Industries International, Inc., Defendants–Appellants (Cristina Zvunca, a Minor, By Her Guardian ad litem, David J. Gubbins, Plaintiff; Wesley Jay Tatum, Defendant).

No. 1–10–0768.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 10, 2012.

965 N.E.2d 1218

Scott G. Golinkin, Law Offices of Scott G. Golinkin, Chicago, for Appellant.

Edward M. Kay, Paul Bozych, Kimberly A. Hartman, Paul V. Esposito, Clausen Miller P.C., Chicago, for Appellee Greyhound Lines, Inc.

David J. Gubbins, Chicago, for Guardian Ad Litem.

Presiding Justice EPSTEIN delivered the judgment of the court, with opinion.

¶ 1 F. John Cushing, administrator de bonis non of the estate of Claudia Zvunca, deceased, appeals from the January 28, 2010 order of the circuit court of Cook County appointing MB Financial Bank, N.A., as special administrator of the estate of Claudia Zvunca. For the following reasons, we vacate the order.

¶ 2 FACTUAL BACKGROUND

¶ 3 On January 15, 2002, Claudia Zvunca (decedent) was struck and killed by a Greyhound bus in Colorado. Her minor daughter, Cristina Zvunca (Cristina), who was eight years old at the time, witnessed the accident. Decedent's heirs were her husband, Tiberiu Klein, whom she had married in the fall of 2000, and Cristina. From these tragic, but relatively straightforward, facts arose 13 filed lawsuits, including legal malpractice suits, in various state and federal courts. In addition to the lawsuits, this matter has generated no fewer than 28 appeals filed in this court.

¶ 4 PROCEDURAL BACKGROUND

¶ 5 At the outset, we note that the subsequent lengthy and somewhat confusing procedural history is in part the result of the simultaneous existence of two wrongful death actions based on the same death—the action underlying the instant appeal (Instant Illinois Action) and an action originally filed in Illinois, removed to federal court in Illinois, and transferred to federal court in Colorado (Colorado Action). Although we will confine our legal analysis to the narrow issue involved in this particular appeal, we believe that a comprehensive summary of the procedural background of this matter leading up to the removal of Cushing will provide context and allow for an enhanced understanding of the issue. Therefore, we have taken judicial notice of court records in Colorado and Illinois, including relevant pleadings and court orders. We have also reviewed the briefs filed in two prior interlocutory appeals (Nos. 1–05–0701 and 1–05–1463) involving the Instant Illinois Action (No. 04 L 10431, renumbered on April 3, 2007 as No. 07 L 3391). We express no opinion regarding the merits of the underlying wrongful death action or any of the related actions, and our legal analysis will be limited to the propriety of the trial court's order appointing a special administrator.

¶ 6 First Complaint Filed (No. 02 L 5584) and Removed to Federal Court (Colorado Action)

¶ 7 On May 3, 2002, Tiberiu Klein, "individually and as Executor of the Estate of Claudia Zvunca," filed a wrongful death and survival action against Greyhound Lines, Inc. (Greyhound), and its driver, Wesley Tatum, only (No. 02 L 5584). Klein alleged in the complaint that he was Cristina's guardian and sought wrongful death damages both for himself and Cristina (paragraph 14 of the complaint alleged that both he and Cristina had "lost the companionship, love, [and] affection of their respective wife and mother"). Claudia had died intestate, however, and Klein

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had not been appointed representative of Claudia's estate. Neither had Klein been appointed special administrator. This deficiency was never addressed by an Illinois court, however, because Greyhound, on May 31, 2002, filed a notice of removal of that action to federal court based on diversity of citizenship. Greyhound then filed a forum non conveniens motion in federal court for the Northern District of Illinois, which was granted and the action was transferred to the District of Colorado. The law firm of Cogan, McNabola & Dolan, LLC (the Cogan firm) represented Klein in the Colorado Action.

¶ 8 On January 13, 2004, two days before the expiration of the statute of limitations, Klein filed a motion to amend his complaint to add as an additional defendant bus designer Motor Coach Industries International, Inc. (Motor Coach). (On January 15, 2004, as will be further discussed below, the Cogan firm filed an action in Illinois in the law division (No. 04 L 497).) On March 24, 2004, the Colorado court denied Klein's motion to amend his complaint to add Motor Coach. On April 15, 2005, the federal court denied defendants' motion to set a pretrial conference and jury trial and ruled that the action pending in Illinois took precedence over the action in Colorado.

¶ 9 First Probate Case (No. 03 P 8718)

¶ 10 In November 2003, Klein filed a petition in the probate division of the circuit court of Cook County to appoint Greg Marshall as the independent administrator of the decedent's estate. Mr. Marshall was a paralegal in the Cogan firm. The probate division granted Klein's petition on November 14, 2003 and letters of office were issued. (In 2005, Cushing replaced Marshall.)

¶ 11 Second Complaint Filed (No. 04 L 497) and Voluntarily Dismissed

¶ 12 On January 15, 2004, the Cogan firm, on behalf of Marshall, filed a wrongful death and survival complaint in Cook County against Motor Coach (No. 04 L 497). On April 6, 2004, leave was granted to amend the complaint to add Greyhound and Tatum as defendants. On May 13, 2004, Greyhound and Tatum filed a motion to dismiss. The Cogan firm withdrew and the law firm of Clancy & Stevens (the Clancy firm) substituted as counsel for Marshall. (The Clancy firm also later replaced the Cogan firm as Klein's counsel in the Colorado Action.) In May 2004, this action was voluntarily dismissed.

¶ 13 Third Complaint Filed (No. 04 L 10431, later renumbered as 07 L 3391) (Instant Illinois Action)

¶ 14 On September 14, 2004, the Clancy firm filed the Instant Illinois Action in the circuit court on behalf of Greg Marshall, as independent administrator of the estate of Claudia Zvunca, deceased, and Cristina Zvunca, a minor, by Paul Brent, as next friend against Motor Coach, Greyhound, and Tatum (No. 04 L 10431). Count I alleged strict liability/wrongful death against Motor Coach and sought recovery on behalf of both Klein and Cristina. Count II was a strict liability/survival count against Motor Coach. Count III alleged negligence/wrongful death against Motor Coach and sought recovery on behalf of both Klein and Cristina. Count IV was a negligence/survival count against Motor Coach. Count V alleged common carrier liability/wrongful death against Greyhound and Tatum but sought recovery for Cristina, but not for Klein. Count VI was a common carrier liability/survival count against Greyhound and Tatum. Count VII, brought by Paul Brent, on behalf of Cristina, alleged negligent infliction of emotional distress against MCI. Count VIII, also brought by Paul Brent, on behalf of Cristina, alleged negligent

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infliction of emotional distress against Greyhound and Tatum.

¶ 15 Meanwhile, in the Colorado Action, in October 2004, Klein moved for reconsideration of the 2002 order transferring the case to Colorado, and requested that the case be transferred back to the Northern District of Illinois. In the alternative, Klein sought a determination that Cristina's claim for damages was not at issue in the Colorado Action. On November 15, 2004, the Colorado court denied the motion to transfer, noting that the case had been pending for more than two years, was ready for trial, and that retransfer would be prejudicial to defendants. The court also ruled that any claim for damages sustained by Cristina on her own behalf was not an issue in the litigation in which she was not a party. (Unlike the Instant Illinois Action, the Colorado Action contained no counts regarding Cristina's emotional distress.) The court specifically refused to "issue an advisory ruling on the effects of a recovery in this case as to entitlement to wrongful death proceeds."

¶ 16 In November and December 2004, Greyhound filed several motions in the Instant Illinois Action including a motion to dismiss the complaint as duplicative of the Colorado Action; a motion to dismiss the wrongful death and survival claims as time-barred; a motion to sever the claims against Greyhound so that they could be transferred to Colorado; and a motion to stay, as an alternative to dismissing the action. The circuit court dismissed the survival count as time-barred but denied all of the other motions.

¶ 17 Appeal No. 1–05–0701

¶ 18 On March 18, 2005, Greyhound filed an interlocutory appeal from the denial of its motion to stay the proceedings. Greyhound argued that the trial court should have stayed this action pursuant to section 2–619(a)(3) of the Code of Civil Procedure ( 735 ILCS 5/2–619(a)(3) (West 2004)) because it was duplicative of the Colorado Action.

¶ 19 Meanwhile, in the Colorado Action, on April 5, 2005, Greyhound filed a...