Tuna v. Wisner
2023 IL App (1st) 211327
Ill. App. Ct.2023Background
- Plaintiff Fuzzy Maiava Tuna, a New Zealand citizen and Qantas flight attendant, was severely injured during a 2008 in-flight incident and has received benefits under New Zealand’s Accident Compensation scheme.
- Tuna sued aircraft manufacturers and others in Cook County, Illinois (the "Airbus action"). Defendants moved for summary judgment arguing New Zealand substantive law governs damages and bars compensatory tort claims under the Accident Compensation Act (s. 317).
- The circuit court entered summary judgment applying New Zealand law; Tuna’s counsel filed a notice of appeal but then voluntarily dismissed it; subsequent attempts to revive the appeal via a 2-1401 petition failed.
- Tuna sued his former counsel (the Wisner defendants) for legal malpractice, alleging their dismissal of the appeal caused the loss of his underlying recovery.
- The Wisner defendants moved for summary judgment arguing New Zealand law conflicts with Illinois law and would have barred recovery regardless of counsel’s conduct, so no proximate causation of damages.
- The circuit court granted summary judgment for defendants; the appellate court affirmed solely on the limited question whether a conflict exists between New Zealand and Illinois substantive law, holding that it does.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an actual conflict exists between New Zealand and Illinois substantive law on recovery of compensatory damages for personal injury | s.317 only bars suits in New Zealand courts, so no conflict; Illinois law should apply | New Zealand’s Accident Compensation Act abolishes common-law compensatory tort claims for covered injuries — outcome-determinative conflict exists | Conflict exists: NZ bars common-law compensatory recovery while Illinois allows it; outcome would differ depending on governing law |
| Whether s.317 operates as a jurisdictional bar preventing Illinois courts from hearing the suit | s.317’s text refers to "any court in New Zealand," so it does not preclude Illinois jurisdiction | Even if not jurisdictional, s.317 reflects substantive NY law that would eliminate the remedy if applied | Court agreed s.317 does not strip Illinois jurisdiction but is a substantive foreign law that, if chosen, would bar recovery |
| Whether counsel’s alleged malpractice proximately caused plaintiff’s damages (i.e., underlying action was winnable) | Counsel’s premature dismissal of appeal prevented a meritorious recovery | Under New Zealand substantive law the underlying claim would have been barred regardless, so no proximate cause or damages | Held for defendants: underlying action would have been barred under NZ law, so plaintiff cannot prove proximate causation of lost recovery |
| Scope of appellate review and forfeiture of second-step choice-of-law/public-policy arguments | (Not argued on appeal) | Court limited review to first-step conflict question because plaintiff did not brief second-step factors or public-policy objections | Court affirmed on first-step conflict finding and declined to address second-step choice-of-law or public-policy issues due to forfeiture |
Key Cases Cited
- Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147 (Ill. 2007) (two-step choice-of-law framework for torts; conflict inquiry then most-significant-relationship analysis)
- Bennett v. Enstrom Helicopter Corp., 679 F.2d 630 (6th Cir. 1982) (recognition that New Zealand’s Accident Compensation scheme displaces common-law compensatory tort claims)
- Governmental Interinsurance Exchange v. Judge, 221 Ill. 2d 195 (Ill. 2006) (legal-malpractice proximity standard: "case within a case")
- Best v. Taylor Machine Works, 179 Ill. 2d 367 (Ill. 1997) (endorsing compensatory aims of tort law)
- Ingersoll v. Klein, 46 Ill. 2d 42 (Ill. 1970) (presumption that situs of injury governs choice-of-law unless another state has more significant relationship)
- People v. Givens, 237 Ill. 2d 311 (Ill. 2010) (appellate courts should not search the record for unargued reasons to reverse)