Foreign judgments in American courts — and hockey


File: New York Ranger George McPhee grabs a handful of hair during a fight against Bobby Nystrom of the rival NY Islanders at Nassau Coliseum, Uniondale, New York, mid 1980s. (Photo by Bruce Bennett Studios/Getty Images)

From Allianz Suisse Versicherungs-Gesellschaft v. Miller (W.D. Mich. June 5, 2014) (some paragraph breaks added):

Allianz Suisse Versicherungs–Gesellschaft, a Swiss insurance company, as subrogee of Andrew McKim, has sued Defendant, Kevin Miller, seeking recognition and enforcement of a foreign country judgment pursuant to the Uniform Foreign–Country Judgments Recognition Act. In particular, Allianz seeks to enforce a Judgment it obtained against Miller in the District Court of Zurich, Switzerland on March 29, 2010…. Miller has filed … [a] motion for summary judgment, arguing that the Court should decline to recognize the Judgment because it is contrary to the public policy of the State of Michigan and violative of the requirements of due process of law….

Miller, a citizen of the United States and the State of Michigan, is and a former professional hockey player. During the 2000–01 season, Miller played for HC Davos in the Switzerland National Hockey League. On October 31, 2000, during a game with the ZSC Lions, Miller “checked” Lions player McKim from behind after McKim took a shot, hitting McKim in the head and neck. As a result, McKim fell and hit his head on the ice. McKim suffered a non-localized concussion and other injuries, and was hospitalized for several weeks. Miller received a five-minute penalty and a playing-time disciplinary penalty….

Following the incident, at the request of the ZSC Lions, the National League Tribunal commenced proceedings to review whether further disciplinary action should be imposed against Miller. On November 15, 2000, the single judge assigned to review the incident determined that Miller violated IIHF Regulation 603 (intentional or potentially malicious injury or attempted injury) and imposed an eight game suspension and a fine. HC Davos appealed the ruling, but the appeal was rejected by the Appeals Chamber of the National League on December 16, 2000. Miller was not a party to the National League Tribunal proceedings, and the Tribunal did not interview him or ask him questions. HC Davos essentially controlled the proceedings, and its primary concern was concluding them in an expeditious manner so that Miller could resume playing before the playoffs. At the insistence of the President of HC Davos, Miller waived his appeal of the Tribunal’s decision. At the time, Miller was unaware that the Tribunal’s decision could be used against him subsequently in criminal or civil proceedings.

[Details of the Swiss criminal prosecution and conviction of Miller omitted. Note also that press accounts report that the injury ended McKim's career. -EV]

Allianz, which insured McKim, filed a separate civil action against Miller in the District Court of Zurich to establish monetary damages for payments it had made to McKim for past, present and future medical expenses, wage loss, and other amounts Allianz was required to pay under Swiss law…. Miller’s counsel offered substantially the same evidence in support of his defense that was presented in the criminal proceeding. Miller could have requested the civil court to allow him to testify at the civil trial, but Miller did not make such a request. In fact, he did not attend the civil trial.

The civil court issued the 69–page Judgment at issue in this case on March 17, 2010. The judge recognized that he was not bound by the criminal finding of guilt, but instead was obligated to take a fresh look at the issues of culpability and damages. The judge rejected Miller’s assertion that he was liable for the “check” only and not the resulting loss of consciousness and injuries that McKim sustained when he hit his head on the ice, reasoning that they were “precisely typical consequences of such conduct.” In concluding that Miller was responsible for the damages resulting from the “check,” the judge observed that Miller must have recognized that he could not have made a legal body check on McKim, that Miller had sufficient time to avoid the improper contact with McKim, and that Miller must have known of the risk that he could inflict serious injury on McKim with contact from behind.

The judge relied, in part, on the expert opinion of Gerhard Müller and explained that he viewed the opinion by Miller’s expert, Burke, with skepticism because it was a “biased valuation report” and was contrary to assessments by other appeals bodies, including the single judge and the appeals tribunal of the National League. The judge also cited the video evidence, which “clearly show[ed] that [Miller] could recognize that it was no longer possible to prevent [McKim] from taking the shot, and certainly not by means of a regular body check,” and that Miller “readily had the option to turn around, and thereby prevent the collision.” The Judgment was in the amount of one million Swiss Francs (as of June 4, 2014, CF 1,000,000 equals approximately $1,115,681), plus interest at the rate of five percent from March 1, 2003, court costs of sixty-one thousand five hundred Swiss Francs, court disbursements of five hundred fifty Swiss Francs, and attorney fees and costs of sixty-two thousand eight hundred Swiss Francs. Miller did not appeal the Judgment, and it became enforceable on April 9, 2010.

Plaintiff’s lawyers sought to enforce the judgment in America, presumably because this is where Miller and his assets are these days. The court held that the judgment was enforceable, Miller argues that it was inconsistent American public policy, and violated due process. Here’s an excerpt:

Miller also complains that he was denied due process in the criminal proceedings, not only because he was denied the opportunity to cross-examine Gerhard Müller, the court-appointed expert, but also because the court rejected Miller’s expert opinions out of hand, refusing to accord them the evidentiary status of Gerhard Müller’s opinion. Miller’s complaints do not concern the specific Swiss proceeding, but instead are an indictment of the Swiss legal system itself, which is not a proper basis for nonrecognition under § 4(c)(8).

Miller was not precluded from cross-examining Gerhard Müller because of the judge’s particular decision, but because Swiss law does not allow for cross-examination of court-appointed experts. Similarly, the criminal court judge did not reject the opinions of Miller’s experts as “evidence” out of bias or an arbitrary application of the court rules, but because Swiss law does not accord the opinions of a party’s expert the same status as the opinions of independent court-appointed experts. Therefore, the criminal proceeding did not offend notions of basic fairness.

And this seems generally quite right to me. This is an ordinary physical injury case, coming out of the courts of Switzerland, based on conduct that happened in Switzerland. It’s not a case in which American law differs in highly important — even constitutionally significant — ways, such as a libel case, which implicates First Amendment rights. (There may be people in Michigan who believe that checking from behind should be a constitutional right, but it isn’t so yet.)

Nor is it a case in which the judgment comes from a country whose legal system we seriously distrust, such as Iran or North Korea. Switzerland is a major trading partner, with a respectable legal system. It makes sense that we generally enforce the judgments of their courts, and they enforce the judgment of ours, despite the modest differences that may exist between our legal system.

For some more detailed thoughts on laws that might jeopardize the enforcement of such foreign judgments in some states, see this post.

NOTE: The picture included in the post is being used as a generic hockey fight picture, not a picture of this particular incident.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
Comments
Show Comments
Most Read National
Next Story
Eugene Volokh · June 10