2017 IL App (1st) 153645
Ill. App. Ct.2017Background
- On Oct. 7, 2008 an Airbus-designed aircraft operated by Qantas experienced two sudden pitch-downs; New Zealand citizen flight attendants Fuzzy Tuna and Jenaya McKay sued Airbus and Northrop Grumman in Cook County, Illinois (defendants conceded liability).
- Defendants moved to apply New Zealand law and for summary judgment, arguing the New Zealand Accident Compensation Act 2001 (NZACA) precludes compensatory damages because plaintiffs already receive statutory ACC benefits. Defendants submitted New Zealand attorney declarations supporting that position.
- Plaintiffs submitted competing New Zealand-law declarations arguing s.317 does not bar claims brought in foreign courts for accidents occurring outside New Zealand and that ACC can seek reimbursement under s.321, so no conflict requiring foreign-law application existed.
- The circuit court granted defendants’ motion, applied New Zealand law, and entered summary judgment with a Rule 304(a) finding; plaintiffs filed an interlocutory appeal, later voluntarily dismissed it, and the summary-judgment order became final.
- After summary judgment, plaintiffs obtained an ACC letter (signed by an ACC legal clerk) stating the NZACA does not prevent New Zealanders from suing overseas and filed a 735 ILCS 5/2-1401 petition to vacate, claiming the ACC letter was new evidence showing no conflict of law. The circuit court denied relief without an evidentiary hearing, giving weight to defendants’ expert declarations that the ACC letter was nonbinding and authored by an unqualified clerk.
- The appellate court affirmed: it treated the 2-1401 denial as appealable, reviewed de novo whether the ACC letter created a genuine issue that would have prevented the original summary judgment, and held the ACC letter would not have altered the choice-of-law result because it was authored by an unqualified legal clerk and therefore not competent foreign-law proof.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether New Zealand law (NZACA) barred compensatory damages for claims in a foreign court (choice-of-law/conflict) | NZACA s.317 does not apply to actions commenced outside New Zealand for accidents outside NZ; ACC can seek reimbursement under s.321; thus no conflict and Illinois law governs damages | s.317 bars compensatory damages for injuries covered by the NZACA, and New Zealand law (lex causae) governs damages because NZ has the most significant relationship | Court assumed ACC letter could create an inference of no conflict but held record still insufficient to show a meritorious defense under 2-1401; original summary judgment stands |
| Whether the ACC letter constituted newly discovered, material evidence supporting vacatur under 2-1401 | ACC letter confirms NZACA permits overseas civil claims and therefore would have changed choice-of-law/damages outcome | ACC letter is cumulative, unsigned by a qualified lawyer, does not address lex causae question, and is therefore nonprobative | Letter alone insufficient; it would not have changed summary judgment because authored by an unqualified legal clerk and contradicted by expert declarations |
| Whether the ACC letter was admissible/qualified proof of foreign law | The ACC is an authoritative, unbiased source; its statement is a proper basis to interpret NZ law | The letter was written by a legal clerk (not a solicitor) and thus is not competent expert proof of foreign law | Court refused to credit the clerk’s letter as competent foreign-law proof; parties must plead and prove foreign law with appropriate evidence |
| Whether circuit court was revested with jurisdiction after dismissal of plaintiffs’ appeal and could properly vacate earlier order | Dismissal of appeal revested the circuit court and its April 2 order vacating summary judgment was valid/new evidence supportive of vacatur | Dismissal under Rule 309 means the original judgment became final (no timely appeal); April 2 order was void because appeal had been pending and is not new evidence | Court held summary judgment became final after plaintiffs dismissed their appeal; the April 2 order was void and not a basis for 2-1401 relief |
Key Cases Cited
- Dragon Construction, Inc. v. Parkway Bank & Trust, 287 Ill. App. 3d 29 (divesting trial court of jurisdiction upon filing of notice of appeal)
- People v. Partee, 125 Ill. 2d 24 (2-1401 petitions may proceed in parallel with appeals)
- Vincent, 226 Ill. 2d 1 (procedural standards and review for 2-1401 dispositions; dismissal/pleadings review is de novo)
- Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783 (distinguishing fact- vs. law-based 2-1401 challenges; abuse-of-discretion standard for fact-based determinations)
- Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147 (choice-of-law/depecage and significant-relationship approach)
- Lubbers v. Norfolk & Western Ry. Co., 105 Ill. 2d 201 (2-1401 factual-new-evidence purposes and due diligence)
- Ostendorf v. International Harvester Co., 89 Ill. 2d 273 (standards for evidentiary hearings on 2-1401 petitions)
- Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C., 402 Ill. App. 3d 961 (legal effect of dismissing an appeal under Rule 309)