By Jon Heshka
What began as a hotly contested hockey game has turned into an international legal dispute. With more twists, turns and double salchows than a figure skating routine, this case involves two players from different countries playing in a third country, two insurers, criminal and civil proceedings, and the judicial systems of two countries including two levels of courts in the United States and at least three in Switzerland.
The “incident” as the US Court of Appeals Sixth Circuit characterized it, happened during the finals of the Swiss National League A on October 31, 2000. American Kevin Miller, playing for HC Davos, collided with Canadian Andrew McKim of the ZSC Lions.
McKim was checked hard from behind by Miller 0.38 seconds after shooting the puck on net. The check caused McKim to suffer a whiplash-type injury and then hit the ice hard with his forehead. Contact sports like hockey hadn’t yet witnessed the concussion litigation crisis now confronting the NFL so there was limited awareness about the identification, treatment and management of sports-related concussions. Nevertheless, just after the collision, McKim’s cognitive deficit was sufficiently pronounced that he could not even recall if he had children. McKim experienced a traumatic brain injury and a sprain to his cervical spine.
McKim’s career was over. Miller, however, went on to play two additional seasons with HC Davos, play two seasons in American minor hockey leagues and later for the NHL Detroit Red Wings.
Miller was suspended for eight games and fined CFH 3000 ($3200 USD) by the Swiss Ice Hockey Association. In September 2005, the Zurich District Court found him guilty of willful assault and negligent aggravated assault and sentenced him to a three month prison term (suspended sentence), two years’ probation and ordered to pay a CFH 10000 ($10700 USD) fine.
Miller appealed and was cleared of all charges by the Zurich Cantonal Court of Appeals. The Swiss Federal Supreme Court in 2007 ultimately weighed in and restored Miller’s convictions.
The Supreme Court held that McKim could not have consented to the type of harm inflicted. The court ruled that hockey players do not implicitly agree to injury sustained as a result of deliberate or grave violations of sports rules which have been specifically created for the protection of the players. Miller had violated r.522 (charging) and r.523 (checking from behind) of the International Ice Hockey Federation. In short, McKim did not assume the risk of being assaulted in such a fashion.
Allianz Suisse Versicherungs-Gesellschaft and ZLE Betriebs AG, McKim’s insurance provider and hockey club, respectively, then filed suit against Miller and two separate civil judgments were entered against him.
In 2005, a document was submitted to Miller in Michigan from AXA Winterthur Insurance Company, the insurance provider of HC Davos, that noted Winterthur’s responsibility for the costs of criminal and civil judgments and proceedings pending with the Zurich district court and previous attorneys’ fees. The document confirmed that Winterthur was responsible for the financial consequences of all judgments and costs arising out of the criminal proceedings and any civil proceedings relating to McKim’s claim against Miller. Winterthur also admitted responsibility for the future costs of civil proceedings then pending with the Zurich district court brought by ZLE Betriebs AG and Allianz Suisse Insurance.
The 2010 civil trial found in favor of Allianz and ZLE and ordered Miller to pay $1,000,000 USD. Miller, claiming reliance on the 2005 agreement, presented these demands to Winterthur, which declined to pay the judgments in full. Miller filed a lawsuit in Michigan seeking various contractual damages and enforcement of the terms of the agreement.
The district court granted Winterthur’s motion to dismiss for lack of personal jurisdiction. Miller appealed to the United States Court of Appeals Sixth Circuit and for various complex reasons involving Michigan’s long-arm statute and reasonableness, in September 2012 the appeals court affirmed the district court’s decision. The court noted that as the insurance policy that exists between the parties includes a Swiss forum selection clause and a Swiss choice of law provision, if Miller wishes to collect from Winterthur, he will have to do so in Switzerland.
Allianz Suisse Versicherungs-Gesellschaft is still owed its money however. To that end, in November 2012 Allianz filed a complaint in Michigan asking the courts to enforce the Swiss court ruling of $1 million against Miller which with interest and costs now totals $1.6 million.
Swiss hockey and the Swiss courts have dared tread on the thin ice which is hockey violence and head injuries. Numerous superstars, including Eric Lindros and Marc Savard, have had their careers cut short due to concussions. The verdict is still out on whether or not NHL poster boy Sidney Crosby will ever return to his former greatness following his concussions in 2010.
Miller has drawn a red line on the ice saying in effect that breach of a safety rule is sufficient to establish civil and criminal liability due to carelessness or reckless.
With nearly 200 NHL players competing in European hockey leagues and multiple insurance policies at play to guard against injury not only of opponents but themselves and also accommodating return to the NHL if or when the lockout ends, this case ought to also serve as a reminder of the obvious fact that a hit in a game can have far-reaching consequences and that the long arm of the law can reach over the boards and into the courts an ocean away.
Jon Heshka is an Associate Professor in the Faculty of Law at Thompson Rivers University in Kamloops, British Columbia. He can be reached at jheshka@tru.ca
