Summary judgment for Airborne upheld by appellate court

Steve Gonzalez Aug. 1, 2006, 12:22pm

Terrance Hopkins

Phillip Kardis

Gary Peel

The Illinois Appellate Court ruled that former Circuit Judge Phillip Kardis made the right decision when he granted Airborne Express' motion for summary judgment.

Represented by Gary Peel and Gerald Walters of the Lakin Law Firm, Jeffrey Hicks of Financial Planning Advisors filed the lawsuit in 2002, claiming Airborne, now DHL, failed to deliver a package by noon the next business day.

Hicks shipped packages using Airborne's "Flight-Ready" prepaid shipping service.

Airborne guaranteed that Hicks' shipment envelope would be delivered by noon the next day, however when it was delayed, the company provided Hicks with a free Flight-Ready envelope pursuant to the its guarantee.

Hicks also sued United Parcel Service for similar wrong-doing in Madison County, but that class action lawsuit was dismissed in June by Circuit Judge Don Weber.

Authoring the opinion for the unanimous three judge panel, Terrance Hopkins wrote, "A summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue regarding any material fact and that the moving party is entitled to a judgment as a matter of law."

On March 22, 2004, Airborne filed a motion for a summary judgment, arguing that it provided Hicks with the only contractual remedy to which he was entitled, a prepaid Flight-Ready envelope.

On Nov. 23, 2004, after hearing arguments, Kardis entered a summary judgment in favor of Airborne, finding that the parties had agreed to an exclusive remedy by giving Hicks another Flight-Ready envelope.

On Dec. 15, 2004, Hicks appealed the decision arguing that Kardis erred in holding that the parties' contract limited Hicks remedy.

Hicks argued that the contract language guaranteeing delivery by a specified time or a free Flight-Ready shipment envelope did not create the exclusive remedy for a breach of Airborne's promise to deliver by the specified time.

Airborne countered that the contract between them was clear and unambiguous and provided the exclusive remedy for a delayed delivery–a free Flight-Ready shipment.

"The primary objective in construing a contract is to give effect to the intention of the parties involved," Hopkins wrote. "The parties' intention must be ascertained from the plain and ordinary meaning of the language of the contract."

He continued, "Pursuant to the parties' contract regarding the Flight-Ready shipment envelope, Airborne guaranteed that it would deliver the shipment on time or provide Hicks with another Flight-Ready domestic express envelope free of charge. The contract precluded a broad range of potential damages and provided that no one could alter or modify its terms."

"The contract's express language clearly provides that the replacement Flight-Ready envelope was Hicks exclusive remedy if Airborne breached the contract by failing to deliver the package by noon the next day."

"Hicks and Airborne voluntarily chose to distribute the risks in a manner represented by the contract language. We find no public policy to bar the contract's exclusive remedy provision and nothing in the record justifies altering the contractual allocation adopted by the parties."

On June 7, Weber dismissed Hicks lawsuit against UPS.

Hicks could have received a full refund of $14.95 for the late delivery of a package, but he chose to be the named plaintiff in a nationwide class action lawsuit.

Hicks had asked Weber to rewrite the contract and fashion a new "common law" remedy despite UPS' refund and credit policy.

"This class action plaintiff is not happy with the $14.95 credit or refund; he asks instead for a refund of $5 per class member per package," Weber wrote in his order.

"This 'common law' remedy would result in each class member receiving $5 less that the contractual remedy stated in the UPS guarantee. Of course, if successful, this purported nationwide class action would generate millions of dollars in plaintiff's attorney's fees," Weber also wrote.

Airborne was represented by Karen Kendall, Craig Unrath, Robert Shultz, Jr., Joseph Whyte and Deborah Hawkins of Edwardsville based Heyl, Royster, Voelker & Allen.

Justices Richard Goldenhersh and Stephen McGlynn concurred.

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Heyl Royster
124 SW Adams St
Peoria, IL 61602

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