Tuna v. Airbus, S.A.S.

• Decision Date: 21 June 2017
• Docket Number: No. 1-15-3645,1-15-3645
• Citation: 81 N.E.3d 546,2017 IL App (1st) 153645
• Parties: Fuzzy TUNA and Jenaya McKay, Plaintiffs-Appellants, v. AIRBUS, S.A.S., a Corporation, and Northrop Grumman Guidance and Electronics Company, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 153645

81 N.E.3d 546

Fuzzy TUNA and Jenaya McKay, Plaintiffs-Appellants,

v.AIRBUS, S.A.S., a Corporation, and Northrop Grumman Guidance and Electronics Company, Inc., Defendants-Appellees.

No. 1-15-3645

Appellate Court of Illinois, First District, THIRD DIVISION.

June 21, 2017

Floyd A. Wisner and Alexandra M. Wisner, of Wisner Law Firm, P.C., of Geneva, for appellants.

Stanley V. Boychuck and Catherine Basque Weiler, of Swanson Martin & Bell, LLP, of Chicago, Thad T. Dameris (pro hac vice) and Christopher M. Odell (pro hac vice), of Arnold & Porter, LLP, of Houston, Texas, and David J. Weiner (pro hac vice), of Arnold & Porter, LLP, of Washington, D.C., for appellee Airbus, S.A.S.

Michael J. Merlo, Linda J. Schneider, and Donald G. Machalinski, of Merlo, Kanofsky Gregg & Machalinski, Ltd., of Chicago, for other appellee.

OPINION

JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 This matter arises from injuries sustained by plaintiffs Fuzzy Tuna and Jenaya McKay when an aircraft designed by defendant Airbus, S.A.S., and operated by Qantas Airways, experienced two sudden pitch-down movements on October 7, 2008. Defendant Northrop Grumman Guidance and Electronics Company, Inc., designed the aircraft's air data inertial reference unit. Although plaintiffs are flight attendants from New Zealand, the aircraft was over the Pacific Ocean when the incident occurred.

¶ 2 Several individuals' negligence and products liability actions were consolidated in the Circuit Court of Cook County.¹ While defendants argued that New Zealand law precluded compensatory damages, defendants did not contest liability. In contrast, plaintiffs argued that New Zealand law permitted courts outside of New Zealand to award its citizens compensatory damages and that, absent a meaningful difference in the laws of the two jurisdictions, Illinois law applied. Agreeing with defendants' position, the circuit court entered summary judgment in their favor, albeit with acknowledged equivocation. Eventually, plaintiffs filed a petition to vacate the summary judgment order pursuant to section 2-1401 of the Illinois Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2014) ), arguing that new evidence supported their position that New Zealand law did not preclude compensatory damages in this case. The circuit court denied that petition without an evidentiary hearing. We now affirm the judgment.

¶ 3 I. BACKGROUND

¶ 4 A. Underlying Proceeding

¶ 5 As indicated, defendants filed a "Motion for Application of New Zealand Law and Summary Judgment" in the underlying action.² The motion alleged that while Illinois permitted recovery for a wide array of damages, New Zealand's no fault system of compensation barred damage claims for personal injuries. Thus, a conflict existed between the laws of those jurisdictions. Additionally, New Zealand law, rather than Illinois law, governed damages because New Zealand had the most significant relationship with this case. Specifically, plaintiffs lived there, received treatment there, and received compensation for injuries and lost earnings under the New Zealand Accident Compensation Act 2001 (the NZACA). Furthermore, plaintiffs and their employers had contributed financially to the New Zealand Accident Compensation Corporation (ACC), the governmental entity responsible for administering the NZACA. In contrast, Illinois had no relationship to plaintiffs' claims. Because New Zealand law precluded plaintiffs from recovering further damages, defendants argued they were entitled to summary judgment. In support, defendants provided a declaration on New Zealand law prepared by two New Zealand attorneys: Rosemary Tobin and Elsabe Schoeman.

¶ 6 According to the declaration, New Zealanders gave up the right to sue for personal injury damages in exchange for receiving benefits without consideration of fault. The NZACA did not eliminate the availability of a common law action or exemplary damages, but did eliminate compensatory damages.³ Section 317(1) of the NZACA states as follows:

"No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand , for damages arising directly or indirectly out of—

(a) personal injury covered by this Act; or

(b) personal injury covered by the former acts." (Emphasis added.) New Zealand Accident Compensation Act 2001 § 317(1)(a), (b) (eff. Sept. 19, 2001).

Defendants' experts also cited Australian case law, finding that section 317's reference to New Zealand courts merely reflected that New Zealand lacked authority to dictate to courts of foreign jurisdictions. The declaration concluded that plaintiffs were entitled to benefits under the NZACA and, in turn, were precluded from seeking compensatory damages in court.

¶ 7 In response, plaintiffs argued that defendants failed to demonstrate a conflict in laws existed. Specifically, section 317, by its own terms, did not apply to a legal action which was commenced outside of New Zealand with respect to an accident outside of New Zealand. Conversely, section 321 of the NZACA actually contemplated that proceedings for damages would be brought outside of New Zealand. Thus, there was no conflict between New Zealand and Illinois law. In support of their position, plaintiffs attached a declaration of New Zealand attorneys David John Goddard and Bruce Andrew Corkill, who found as follows:

"[I]t is clear as a matter of New Zealand law that s 317 does not prevent a common law claim before an overseas court by a person who suffers personal injury sustained in an air accident outside New Zealand, where the claim relates to conduct by one or more defendants outside New Zealand. Indeed in some circumstances a person who suffers such an injury, and who is entitled to cover under the Act by virtue of their residence in New Zealand, may be required to pursue common law proceedings outside New Zealand."

More specifically, a New Zealand court interpreting the statute would consider its language in conjunction with other factors. Although a New Zealand court could find that section 317 would be undermined by double recovery in an overseas court, section 321 allowed the ACC to recover paid benefits from an award of damages. As a result, the NZACA would be advanced by allowing claims for compensatory damages to be pursued outside of New Zealand. While plaintiffs' experts doubted that an appellate court in New Zealand would employ an exclusively text-driven approach, such court would nonetheless find compensatory damages were available from defendants outside of New Zealand who had not financially contributed to New Zealand's accident compensation scheme.⁴

¶ 8 In reply, defendants attached a supplementary declaration from their experts, confirming their "original view that section 317 applies in a foreign court when New Zealand law is the lex causae ." See Black's Law Dictionary (10th ed. 2014) (defining "lex causae " as "[t]he legal system that governs a dispute").

¶ 9 On October 9, 2014, the circuit court granted defendants' motion to apply New Zealand law and entered summary judgment in their favor. The court also found there was no just reason to delay enforcement or appeal pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).⁵ Plaintiffs filed a timely notice of appeal on November 6, 2014 (No. 1-14-3460).

¶ 10 B. Appeal From Summary Judgment Order

¶ 11 On April 2, 2015, while plaintiffs' interlocutory appeal was pending, the court vacated the summary judgment order sua sponte and requested additional briefing on the choice-of-law issue. Four days later, plaintiffs moved in the circuit court to voluntarily dismiss their appeal pursuant to Illinois Supreme Court Rule 309 (eff. Feb. 1, 1981) (permitting the circuit court to dismiss an appeal before the record has been filed on appeal).

¶ 12 In response, defendants argued that the April 2, 2015, order was void because plaintiffs had already filed a notice of appeal, divesting the circuit court of jurisdiction. Defendants stated, "[i]f Plaintiffs voluntarily dismiss their appeal, they cannot then file a post-judgment motion to vacate, nor can the Court grant such relief." Additionally, plaintiffs would not be able to satisfy the requirements of section 2-1401 and the revestment doctrine would not restore the circuit court's jurisdiction. Furthermore, plaintiffs would not be able to file a second notice of appeal from the summary judgment order. "For these reasons, Defendants wish the Court to be fully advised in the premises before granting Plaintiffs' motion to voluntarily dismiss the appeal. Defendants do not oppose Plaintiffs' motion but will oppose any extra-jurisdictional efforts to vacate or modify the October 9 Order."

¶ 13 On June 11, 2015, the circuit court dismissed plaintiffs' appeal pursuant to Rule 309. The court realized that it lacked jurisdiction on April 2, 2015, but urged petitioners to file a section 2-1401 petition. Although Rule 309 requires that the court clerk forward a copy of the dismissal order to the reviewing court ( Ill. S. Ct. R. 309 (eff. Feb. 1, 1981)), it appears that the order was not forwarded, as this court purported to dismiss the same appeal for want of prosecution two months later.

¶ 14 C. Section 2-1401 Proceedings

¶ 15 Meanwhile, plaintiffs' attorney Floyd Wisner, through his referring counsel in Australia, procured a letter purporting to set forth the ACC's position on actions in foreign courts. The ACC wrote the letter to Wisner's referring counsel on February 11, 2015, and, ultimately, referring counsel forwarded it to Wisner. The letter, authored by the ACC's legal clerk, Aric Shakur, stated, "[w]e can confirm that the Act does not prevent New Zealanders from bringing civil claims for personal injury in overseas courts. This includes those who are receiving cover from the [ACC]." The letter similarly stated that while section 317(a) of the NZACA barred claimants from commencing actions for...