By Baker & McKenzie
Allianz Suisse Versicherungs-Gesellschaft sued Kevin Miller, as subrogee of Andrew McKim, under the Uniform Foreign-Country Money Judgments Recognition Act, (“FCMJRA”) seeking to enforce against Miller a judgment obtained from a district court of Zürich, Switzerland in 2010. Allianz Suisse moved for summary judgment requesting entry of an order recognizing the judgment as conclusive between the parties and enforceable in Michigan, the state in which the federal court sits. Miller cross-moved for summary judgment, arguing that the court should decline to recognize the Zürich judgment because it is contrary to the public policy and violates due process.
Miller is a citizen of the U.S. who played hockey in Switzerland. In a game during the 2000-2001 season, Miller checked McKim, causing McKim to suffer a concussion and spend several weeks in the hospital. The Swiss hockey league determined that Miller violated a regulation against causing injury and imposed an eight game suspension and fine against Miller. Miller’s team controlled the league proceedings on behalf of Miller, who was unaware that this decision could be used against him in subsequent civil or criminal proceedings.
In December 2004, Zürich’s prosecutor charged Miller with malicious bodily injury and grievous bodily injury. Two independent experts submitted reports to the court. While Miller’s attorney was not permitted to examine the independent experts, he was able to submit written questions to them. Miller’s attorney submitted questions to only one of the experts. Miller also submitted reports from his own experts. Miller was ultimately found guilty of criminal minor bodily harm and criminal negligent bodily harm and was determined to be liable for McKim’s injuries.
Allianz Suisse, insurer of McKim, then filed a civil action against Miller in the district court of Zürich to recover money damages for payments it had made to McKim for past, present, and future medical expenses, wage loss, and other amounts. Miller did not testify at, or even attend, the trial, though he could have requested the right to testify. The judge noted that he was not bound by the criminal judgment, but still rejected Miller’s argument that he was liable for the check only, not the subsequent loss of consciousness and injuries sustained when McKim hit his head on the ice. The court entered a judgment against Miller in the amount of 1 million Swiss Francs. Miller did not appeal the judgment, which became enforceable on April 9, 2010.
Michigan has adopted the FCMJRA, M.C.L.A. § 691.1131, et seq., which applies to foreign judgments that grant or deny recovery of a sum of money and are final, conclusive and enforceable under the law of the foreign country. The FCMJRA mandates nonrecognition if the judicial system does not provide an impartial tribunal or the procedures are incompatible with due process, if the foreign court does not have personal jurisdiction over the defendant or jurisdiction over the subject matter. The FCMJRA allows for nonrecognition, but does not mandate it, if the judgment or case is repugnant to the public policy of the state of Michigan or the United States or if the particular proceeding was not compatible with due process of law.
Miller argued that the judgment is repugnant to the public policy of Michigan and the proceeding giving rise to this judgment was not compatible with due process of law. The court noted that the “repugnant to public policy” standard is rarely successful as the standard is stringent and a difference in law is not enough; enforcement violates public policy only if it would “tend to injure the public health, the public morals, or the public confidence in the administration of law, or would undermine that sense of security for individual rights, whether of personal liberty or of private property, which any citizen ought to feel.”
Miller argued that the judgment violated public policy because the judgment relied on the decision by the league in a proceeding to which he was not a party and because he was denied the right of confrontation. The court determined that neither argument met the stringent standard above. While Miller argued that denial of the opportunity to cross-examine one of the independent experts was a denial of his right of confrontation, that right applies only in criminal cases. The court also rejected Miller’s argument that the reliance on the hockey league’s determination in a proceeding that Miller was not a party to was also repugnant to Michigan’s public policy, since that determination was not given preclusive effect by the Zürich court, but was considered as evidence, along with the video of the incident.
With respect to the due process argument, the court relied on the Seventh Circuit’s decision that interpreted due process as “a concept of fair procedure simple and basic enough to describe the judicial processes of civilized nations, our peers.” Miller relied on the same two issues: that he was denied the ability to cross-examine an expert; and the court’s reliance on the hockey league’s determination. The court noted that Miller was able to submit questions to the independent expert, and so his due process argument on that ground failed. Furthermore, the court again noted that the Zurich court was not bound by either the hockey league’s determination or the criminal proceeding, but merely considered them as part of the evidence, along with the evidence submitted by Miller. As such, the court found that there was no failure of due process to support nonrecognition of the judgment and granted Allianz Suisse’s motion for summary judgment.
Allianz Suisse Versicherungs-Gesellschaft v. Miller, No. 12-CV-1250 (W.D. Mich. June 5, 2014)
