Appeal from the Circuit Court of Cook County. Honorable Leonard R. Grazian Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
Released for publication April 7, 2003.
CRAIG ANDERSON, SPECIAL ADMINISTRATOR OF THE ESTATE OF CATHERINE ANDERSON, PLAINTIFF,
ALBERTO-CULVER USA, INC., AON CORPORATION, VILLAGE OF WHEELING, CITY OF PROSPECT HEIGHTS AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS.
TERESA P. WHITENER, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ROBERTHAMPTON WHITENER, PLAINTIFF-APPELLEE,
AON CORPORATION AND AON AVIATION, INC., DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS, AND THE ESTATE OF MARTIN L. KOPPIE, DEFENDANT,
ALBERTO-CULVER COMPANY AND ALBERTO-CULVER USA, INC., THIRD-PARTY DEFENDANTS-APPELLEES.
JACQUELINE L. QUERN, INDEPENDENT EXECUTOR OF THE ESTATE OF ARTHUR QUERN, PLAINTIFF,
ALBERTO-CULVER USA, INC., AON CORPORATION, VILLAGE OF WHEELING, CITY OF PROSPECT HEIGHTS, AND PALWAUKEE MUNICIPAL AIRPORT COMMISSION, DEFENDANTS.
KALYN ALWIN AND DEVIN KOPPIE,CO-ADMINISTRATORS OF THE ESTATE OF MARTIN LARRY KOPPIE, PLAINTIFFS,
VILLAGE OF WHEELING, CITY OF PROSPECT HEIGHTS, PALWAUKEE MUNICIPAL AIRPORT COMMISSION, ALBERTO-CULVER USA, INC., ALBERTO-CULVER INTERNATIONAL, INC., ALBERTO-CULVER COMPANY, AND TERESA P. WHITENER, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ROBERT HAMPTON WHITENER, DEFENDANTS.
Appeal from the Circuit Court of Cook County. Honorable Leonard R. Grazian Judge Presiding.
The opinion of the court was delivered by: Justice Hartman
A private airplane crash at Palwaukee Municipal Airport (Palwaukee) outside Chicago resulted in the deaths of all four people aboard, including Martin Larry Koppie (Koppie), senior pilot and captain for defendant, Aon Aviation, Inc. (Aon Aviation); Robert Hampton Whitener (Whitener), pilot for defendants, Alberto-Culver USA, Inc., Alberto-Culver Company (Alberto-Culver Co.) and Alberto-Culver International, Inc. (collectively, Alberto defendants), the registered owner of the airplane; Arthur Quern, Chief Executive Officer and Chairman of the Board for Aon Risk Management, Inc.; and Catherine Mio Anderson, a flight attendant employed by Executive Jet, whose services were secured by Aon Aviation. Although each party brought multiple causes of action, inter alia, for wrongful death, survival, contribution and contractual indemnity, only the cases involving Whitener's and Koppie's Estates and the contribution claims between Alberto defendants and defendants, Aon Corporation (Aon Corp.) and Aon Aviation (collectively, Aon defendants), proceeded to a jury trial. The contribution claims were separated from the underlying wrongful death and survival claims, and were to be tried consecutively to the same jury following their verdict. The jury rendered a verdict in favor of Whitener's Estate and against Aon in the amount of $18,946,749; mistrials were declared as to all the remaining consolidated causes of action.
This case involved substantial technical facts and concepts, consumed 33 days for trial, at which 37 witnesses testified and over 915 exhibits were submitted, and required over 17,000 pages of record. Accordingly, the discussion of facts, issues and disposition requires extensive consideration and has been bifurcated into this opinion and a Supreme Court Rule 23 (166 Ill. 2d R. 23 (Rule 23)) disposition, each being filed simultaneously with the other.
On January 24, 2001, the circuit court entered judgment on the jury verdict solely against Aon Corp. On July 12, 2001, the court granted Alberto defendants' emergency motion to correct the record and entered judgment, nunc pro tunc, January 24, 2001, against Aon Aviation, instead of Aon Corp.
On appeal, Aon defendants seek reversal of both the January 24, 2001 and July 12, 2001 circuit court orders and remandment for a new trial, alleging error and lack of jurisdiction; error with respect to the procedure allowing the estates' cases to proceed to verdict prior to the presentation of evidence regarding the contribution claims; and error in certain evidentiary findings, which will be decided in this opinion. The Rule 23 order will consider claims of error in certain other evidentiary findings, numerous alleged Supreme Court Rule 213 (177 Ill. 2d R. 213 (Rule 213 )) violations; error in the grant and refusal of certain jury instructions; error in denial of its motion to dismiss based upon Alberto defendants' failure to comply with a notice to produce; and error in the amount of the verdict. All technical terms and explanations contained in the opinion or order emanate from evidentiary sources contained in the record on appeal.
Aon Aviation and Alberto-Culver Co. each maintained a flight department at Palwaukee and each operated their own Gulfstream IV (GIV) aircraft, a twin engine jet that requires a two-pilot crew. On June 7, 1995, they entered into an Interchange Agreement, which permitted each to use the other corporation's GIV upon occasion. Both parties agreed, inter alia, to (1) "hold harmless and indemnify the other from loss, expense, damages, claims or suits which they might suffer as a result of any act or omission of the other party"; (2) maintain operational control *fn1 of their own GIV during use by the other party; and (3) purchase an aircraft insurance policy with a minimum $150,000,000 coverage when piloting each other's airplanes. Koppie, listed as chief pilot for Aon Aviation, signed the agreement twice for "Operational Control" and acceptance purposes.
On October 30, 1996, pursuant to the Interchange Agreement, an Alberto-Culver Co. GIV was scheduled to fly Aon's Quern from Wheeling, Illinois to Burbank, California. Only one Alberto-Culver Co. pilot, Whitener, was available, and Aon Aviation was advised of the need to supply an Aon Aviation pilot to complete the flight crew. Aon defendants chose to have a mixed flight crew that included one of their pilots and an Alberto-Culver Co. pilot. Koppie volunteered to be the Aon Aviation pilot. Whitener and Koppie had flown together in both the Alberto-Culver Co. and Aon Aviation GIVs on four prior occasions, during which each had acted as the "pilot in command" (PIC). *fn2 Both had extensive flying experience in different types of aircraft, including the GIV. Whitener logged 2000 and Koppie 500 hours of flight time in the GIV. The two pilots also were familiar with Palwaukee.
Prior to departure, Whitener prepared and filed a flight plan at a computer terminal in the Alberto-Culver Co. office, showing the proposed route. The plan listed Koppie as the PIC on the flight leg to Burbank and Whitener as the PIC on the return trip.
Koppie sat in the left pilot seat and Whitener in the right pilot seat. A cockpit voice recorder (CVR) recorded the pilots' completion of a pre-flight check of the aircraft, which included testing of the rudder, a vertical component of the tail that maintains side-to-side directional control. *fn3
The pre-flight check also revealed the position of nosewheel steering select switch (NSSS), which allows the pilot to turn off rudder pedal steering to the nosewheel of the aircraft and limit steering of the nosewheel to the tiller, also known as a handwheel. *fn4 Gulfstream installed the NSSS on the Alberto-Culver Co. airplane during the summer of 1995 pursuant to Aircraft Service Change 302 (ASC 302). *fn5 Each pilot determines by preference whether to leave the NSSS in a "handwheel only" position, meaning no rudder pedal input could be provided to the nosewheel. Robert Fash, the Alberto-Culver Co. pilot who had flown the GIV to Palwaukee the night before the accident, left the NSSS in the handwheel only position.
Neither Koppie nor Whitener reported any problems with the aircraft during the pre-flight check. All flight controls were working normally when the aircraft taxied onto the runway for takeoff. *fn6 When the flight was cleared for takeoff, strong and gusty crosswinds blew at 40 miles per hour from left to right across the departure runway. *fn7 Nevertheless, the conditions were deemed safe for takeoff. The airplane began to roll down the runway, but started to veer to the left side of the runway in the middle of its takeoff roll. According to the National Transportation Safety Board (NTSB) report, the aircraft rolled onto the grass at the left side of the runway, traversing a shallow ditch that paralleled the runway, which resulted in the loss of the landing gear, flight control surfaces and other airplane components. The airplane then slid on its belly and became airborne after it encountered a small berm at the departure end of the runway. Once airborne, the airplane flew over Hintz Road, contacted an embankment along Wolf Road and skipped over Wolf Road, slid across a field and stream gully and came to rest on the edge of an apartment complex parking lot, where it was consumed by flames. *fn8
The crash site was secured by police and then by the NTSB and FAA, and the debris evidence was transported and stored in a hangar at Palwaukee. The rudder actuator was identified in a photograph taken near the airplane's final resting place, but disappeared at some point during removal of the wreckage. The Wheeling Fire Department conducted an extensive search for the missing rudder actuator for eight days after the accident. Neither Alberto-Culver Co. nor Aon Aviation were involved in the search, nor were they responsible for securing and transporting the wreckage. The NTSB and local authorities were the only agencies that had control over the rudder actuator and other aircraft components when the wreckage was transported to the hangar.
Each of the four estates of the persons who perished in the accident filed wrongful death actions, which were consolidated for discovery and trial and included various combinations of defendants. Whitener's Estate alleged that Koppie was at fault for the accident and that Aon defendants failed to train and instruct adequately its pilots concerning procedures in mixed crew situations. Koppie's Estate alleged that Whitener was at fault and also claimed negligence against Alberto defendants and the village of Wheeling, city of Prospect Heights and Palwaukee Municipal Airport (collectively, the Municipal defendants). Alberto defendants and Whitener's Estate filed counterclaims and third-party claims for contribution and contractual indemnity under the Interchange Agreement against Aon defendants. Aon Corp. initially filed a counterclaim against Alberto defendants for contribution and contractual indemnity pursuant to the Interchange Agreement, but later amended the counterclaim as Aon Aviation, not Aon Corp.
On May 24, 1999, the circuit court granted summary judgment in favor of Municipal defendants pursuant to the Illinois Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2000)). The Estates of Koppie and Quern and Alberto defendants appealed that decision, which was reversed and remanded for trial on December 7, 2000. See Anderson, 317 Ill. App. 3d at 1117. The supreme court denied Municipal defendants' petition for leave to appeal. Anderson v. Alberto-Culver USA, Inc., 194 Ill. 2d 565, 747 N.E.2d 351 (2001).
On November 6, 2000, the circuit court denied Alberto defendants' emergency motion to sever the case for trial.
The consolidated causes of action proceeded to trial on November 14, 2000, but did not include claims asserted against Municipal defendants. Whitener's Estate thereafter dismissed Koppie's Estate as a defendant.
On December 1, 2000, over Aon defendants' objection, the circuit court held that the contribution claims would not be tried until the conclusion of the wrongful death actions. The court commented several times during trial regarding the jury's responsibility to decide the case in two phases, "first the two wrongful death cases and after that the contribution action," and that "the same jury is going to decide the whole thing."
The Anderson and Quern Estates later entered into settlement agreements with Alberto defendants and their causes of action were dismissed. Alberto defendants retained their contribution and third-party claims against Aon defendants for those settlements.
The following evidence was adduced at trial:
John Cork, Aon's director of flight operations, testified on behalf of Whitener's Estate. The purpose of the October 30, 1996 trip was to bring Quern to a business meeting in California. Cork was unsure if the pilot sitting in the left cockpit seat was the PF on October 30, 1996; Whitener "absolutely" was in operational control of the aircraft during takeoff. Whitener was the PIC on the date of the accident as the representative for the company that owns the airplane, in this case, Alberto-Culver Co.
On cross-examination by Alberto defendants, Cork testified that Koppie was the PF and had responsibility for physically controlling the aircraft during the takeoff phase of the flight. The cause of the crash was the failure of the PF to maintain directional control of the aircraft during a gusty crosswind. Cork stated that there is a difference between operational control and physically operating the aircraft.
The circuit court, over objections from Aon defendants and Koppie's Estate, allowed the flight planning documents into evidence subject to cross-examination. *fn9 Aon defendants' motion to redact the flight plan filing to remove the designation of Koppie as the PIC was denied, the court stating, "[t]his is computer-generated information and it was generated at a particular time on a particular date and that generated information is retained in Allied Signal, Honeywell, soon to be General Electric, files in Washington, D.C. This comes directly out of that computer. It carries with it the aura of genuineness and I'm going to take it without redaction." The court noted other evidence showing that Koppie was the PIC.
The circuit court also ruled that the NTSB factual report would be admitted into evidence based on Zamora's evidence deposition (see footnote 9). The court noted that it reserved its ruling to determine whether there was proper foundation for the report because it states that Koppie was the PIC. The court stated that it admonished the jury regarding what information would be admitted into evidence. At trial, Zamora testified as she had previously outside the jury's presence.
Edward Mendenhall, chief of safety at Gulfstream Aerospace Corporation, testified for Whitener's Estate on direct examination that he was involved in the NTSB investigation. He worked with Whitener at Gulfstream, and flew with him on several occasions between 1983 and 1985. Whitener had excellent pilot skills and good cockpit resource management skills. Aon defendants' objection to this evidence on grounds of remoteness was overruled. In Mendenhall's opinion, the pilot in the left seat was operating the airplane. Aon defendants' objections, based on speculation, were overruled on the ground that the opinion was based on the difference in conduct and the roles of the PF and PNF according to the CVR transcript from the accident.
On cross-examination by Alberto defendants, Mendenhall testified that Koppie was both the PF and PIC. Koppie failed to maintain directional control of the airplane. The crosswinds contributed to the loss of control. The accident would not have occurred if Koppie had stopped the aircraft when it started to veer from the center line of the runway during takeoff; the aircraft was "easily stoppable." Whitener did not cause the crash because he was not operating the controls.
Over Aon defendants' objections the circuit court allowed Mendenhall to testify regarding whether Gulfstream or the NTSB tested the nosewheel steering components following the accident. Aon defendants objected to this testimony because the nosewheel steering system includes the rudder actuator, which was missing from the investigation. Mendenhall clarified that the rudder actuator is ...