On the wings of justice

Jolanta Budzowska        08 July 2016        Comments (0)

As far as aviation personal injury cases are concerned, undoubtedly the most important and prominent one for our personal injury team would be the case of the emergency landing of a Boeing 767 aircraft at the Okęcie Airport in Warsaw in 2011.

The aircraft, piloted by Captain Tadeusz Wrona, had a belly landing on 1 November 2011. Handling the case was a cooperative effort, as the injured parties were represented by the Wisner Law Firm based in Chicago, Stewarts Law based in London, as well as our personal injury team at BFP on the Polish side – all specialising in aviation accidents and claims connected therewith.

The litigation was initiated by a civil claim filed in the United States Circuit Court of Cook County, Illinois, County Department, Law Division by the US attorney acting for the passengers, namely Att. Floyd Wisner of Wisner Law Firm. The lawsuit was filed on the first anniversary of the accident (i.e. on 1 November 2012) against the manufacturer of the aircraft, Boeing Company, as well as the servicing company, Mach II. When the claim was filed, the group of the plaintiffs constituted of 95 passengers. Subsequently there joined other plaintiffs who were successively added to the claim.

The first court action of the Defendant, Boeing, was making a third-party claim against the Polish airline, LOT. Boeing argued that LOT was at least partially responsible for the accident and for the loss borne by the passengers. This litigation technique was to increase the chances of success of a Forum Non Conveniens application, which was subsequently filed by the Defendants. The latter aimed at transferring the case to the jurisdiction of another country. Such an application is based on the assumption that the pending case has more ties with another country than the one where the claim was initiated, and therefore it is justified to transfer the case to the competence of another court. In this case, Boeing sought to transfer the case to the jurisdiction of the Polish courts, arguing that there were more factors connecting the case with Poland than with the United States.

The previously mentioned third party claim, in accordance with the US provisions, led in fact to the matter being referred to the state court of a higher level (i.e. United States District Court, Northern District of Illinois, Eastern Division) – since the third party (LOT airlines) had its registered office abroad (in Poland). The latter court was to render the decision to transfer the case to the Federal Court. In turn, the chances to have the Forum non Conveniens application granted in the Federal Court are in principle higher than in state courts. In response to such actions on the part of the Defendants, the attorney for the Plaintiffs sought to pursue the case in the state court and, consequently, applied to the court to separate the cases filed on behalf of the passengers against Boeing and that filed against Mach II (main action) from the third party claim against LOT airlines. Granting this motion would allow to pursue the claims with the first case in the state court (without the participation of LOT there was no reason that the case came before the Federal Court), which would in turn increase the chances of dismissing the application of Forum non Conveniens. The court rejected the application for the separation of the cases, however the subsequent conclusion of the settlement by the parties caused that this issue has ultimately turned out to be irrelevant.

In the end, the number of the Plaintiffs in the actions initiated in this case in the US exceeded 130, with a total of 103 Plaintiffs being retained directly by BFP.

It should be pointed out that this court action is not regarded as a strict class action, but rather as the claim with multiple plaintiffs. This is due to the fact that the damage borne by each Plaintiff was separate and had a different scope.

What is also worthwhile to note is that bringing a lawsuit before a Polish court was in this case highly inadvisable, because then it would be necessary to sue the carrier, i.e. LOT airlines. The passengers’ claims with respect to the carrier are subject to the provisions of the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), which does not allow claims for non-pecuniary damages (emotional distress, negative experience, trauma); while this type of injury was the predominant element of the claims of all passengers. For the same reason it was not in the interest of the Plaintiffs to have Forum non Conveniens granted by the US courts.

The dispute was ultimately settled between the parties. The settlement is subject to confidentiality, therefore we cannot provide any information about its terms and conditions.

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