Kogan v. SAS Group

Filing 154

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 5/23/2017.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELLEN KOGAN,
Plaintiff,
vs.
SCANDINAVIAN AIRLINES SYSTEM, a foreign
corporation
Defendant.

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14 C 9551
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Ellen Kogan sued Scandinavian Airlines System (“SAS”) for breach of contract and
violation of the Convention for the Unification of Certain Rules for International Carriage by Air
(“Montreal Convention”) after her flight from Copenhagen, Denmark, to Chicago was delayed
by several hours. Doc. 22. Kogan initially sought to represent a class, Doc. 25, but she later
abandoned her class claims, Doc. 99; Doc. 129 at ¶ 1; Doc. 140-3 at ¶ 1. Kogan also tried to add
as a second plaintiff an individual who suffered delays on other SAS flights, Doc. 51, but the
court denied her request, Doc. 64 (Bucklo, J.). SAS now moves for partial summary judgment
on most of Kogan’s claims. Doc. 128. The motion is granted.
Background
The facts are set forth as favorably to Kogan as the record and Local Rule 56.1 permit.
See Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017). On summary judgment, the court
must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N.
Am., LLC, 805 F.3d 278, 281 (7th Cir. 2015).
Kogan is an Illinois resident. Doc. 129 at ¶ 12; Doc. 140-3 at ¶ 12. SAS is an
international airline based in Sweden. Doc. 129 at ¶ 13; Doc. 140-3 at ¶ 13. On August 24,

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2014, Kogan was scheduled to fly from Copenhagen to Chicago on SAS Flight No. SK 943.
Doc. 129 at ¶ 3; Doc. 140-3 at ¶ 3. Flight 943’s arrival in Chicago was delayed by
approximately five hours. Doc. 129 at ¶ 3; Doc. 140-3 at ¶ 3.
While delayed at the Copenhagen airport, Kogan spent $285 on sanitary napkins, water,
and two meals. Doc. 129 at ¶ 10 (asserting this fact, with proper citation to Kogan’s deposition
testimony); Doc. 129-1 at 43, p. 63 (Kogan’s testimony, supporting the assertion); Doc. 140-3 at
¶ 10 (denying the assertion, with citation to portions of the deposition that do not contradict it).
Kogan also gave $150 in cash to another traveler after borrowing his cell phone to notify
acquaintances in the United States of the delay. Doc. 129 at ¶ 10 (asserting that Kogan spent
$150 for “international telecommunication expenses,” with proper citation to her deposition
testimony); Doc. 129-1 at 40, pp. 50-51 (Kogan’s testimony, supporting the assertion); Doc. 1403 at ¶ 10 (denying the assertion, with citation to portions of the deposition that do not contradict
it). The delay also caused Kogan to miss a family reunion, for which she had already incurred
$200 in prepaid expenses. Doc. 129 at ¶ 10 (asserting this fact, with proper citation to Kogan’s
deposition testimony); Doc. 129-1 at 44, pp. 66-67 (Kogan’s testimony, supporting the
assertion); Doc. 140-3 at ¶ 10 (denying the assertion, with citation to portions of the deposition
that do not contradict it). Upon arriving at O’Hare International Airport in Chicago, Kogan paid
$60 for a taxi home. Doc. 129 at ¶ 10 (asserting this fact, with proper citation to Kogan’s
deposition testimony); Doc. 129-1 at 42, p. 58 (Kogan’s testimony, supporting the assertion);
Doc. 140-3 at ¶ 10 (denying the assertion, with citation to portions of the deposition that do not
contradict it). Kogan claims these expenses, which total $695, as economic damages stemming
from the delay. Doc. 129 at ¶ 9 (asserting this fact, with proper citation to Kogan’s interrogatory
response); Doc. 129-1 at 81 (Kogan’s interrogatory response, supporting the assertion); Doc.

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140-3 at ¶ 9 (denying the assertion, with citation to portions of Kogan’s deposition that do not
contradict it). Although Kogan has no documentation of these expenses, Doc. 129 at ¶ 11; Doc.
140-3 at ¶ 11, SAS does not contest them.
In addition, Kogan asserts that the delay of Flight 943 caused her to miss a business
meeting, harming her future employment prospects. Doc. 129-1 at 45-46, pp. 70-74; Doc. 140-4
at ¶¶ 1-3. According to her testimony, the meeting was to take place at 8:00 p.m. on the night of
her scheduled arrival (a Sunday), with an individual whom she refused to identify, so that she
could sign an employment contract worth $45,000 per year. Doc. 129-1 at 45, pp. 70-72.
Although she claimed to have already interviewed for, had extensive discussions about, and even
been offered the job in question, Kogan has no written job offer or any other corroborating
documents. Id. at 46, pp. 73-74. Kogan testified that, because she missed the Sunday night
meeting, somebody else got the job instead. Id. at 46, p. 74. Kogan also testified that she felt ill
and vomited several times during the delay, the flight to Chicago, and the days that followed,
causing her to miss three days of work. Id. at 34, p. 25; id. at 44-45, pp. 68-69; id. at 48, p. 84;
Doc. 140-4 at ¶ 4.
Discussion
Kogan brings a direct claim for compensation under the Montreal Convention, as well as
a claim under her airfare contract with SAS, which she alleges promised her compensation
according to the terms of the Montreal Convention and/or European Union Regulation (EC) No.
261/2004 (“EU 261”). Doc. 22. SAS’s motion for partial summary judgment seeks (1) a ruling
that Kogan is not entitled to any compensation under the terms of EU 261 and (2) a ruling
limiting her potential compensation under the Montreal Convention to $695. Doc. 128. SAS

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does not at this stage dispute that Kogan is entitled to compensation under the Montreal
Convention, either directly or via the Convention’s incorporation into her airfare contract.
I.

EU 261
EU 261, a regulation setting forth a framework for ensuring that passengers are

adequately compensated for flight delays and cancellations, is not directly enforceable in United
States courts. See Baumeister v. Deutsche Lufthansa, AG, 811 F.3d 963, 966 (7th Cir. 2016);
Volodarskiy v. Delta Airlines, Inc., 784 F.3d 349, 357 (7th Cir. 2015) (“[W]e conclude that EU
261 is not judicially enforceable outside the courts of EU Member States.”). The Seventh Circuit
has left open the question whether an airline can incorporate EU 261 by reference into its airfare
contract with a passenger, thereby voluntarily assuming an enforceable duty to comply with its
terms. See Baumeister v. Deutsche Lufthansa, AG, 811 F.3d 963, 966 (7th Cir. 2016) (“We’ll
assume for purposes of this appeal that Baumeister can indeed bring a breach of contract suit to
enforce [EU 261], although it can be questioned how a promise to abide by it could be enforced
in U.S. courts given our holding in Volodarskiy that the regulation can be enforced only in
European courts or agencies.”). It is not necessary to resolve that question here because even if
EU 261 could be rendered enforceable in that way, SAS’s airfare contract with Kogan does not
attempt to incorporate EU 261 by reference.
Kogan’s contract claims are governed by Illinois law because she filed suit in a district
court located in Illinois and neither party argues choice of law. See Ryerson Inc., v. Fed. Ins.
Co., 676 F.3d 610, 611 (7th Cir. 2012). To determine whether a contract incorporates by
reference another document, the touchstone is the parties’ intent. See 188 LLC v. Trinity Indus.,
Inc., 300 F.3d 730, 736 (7th Cir. 2002) (“For a contract to incorporate all or part of another
document by reference, the reference must show an intention to incorporate the document and

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make it part of the contract.”); Rosenblum v. Travelbyus.com Ltd., 299 F.3d 657, 664 (7th Cir.
2002) (“The contract must show an intent to incorporate the other document and make it a part of
the contract itself.”); Dochak v. Polskie Linie Lotnicze LOT S.A., 189 F. Supp. 3d 798, 802 (N.D.
Ill. 2016) (“The party seeking to enforce the terms of the allegedly incorporated document must
show an intention to incorporate the document and make it a part of the contract.”) (internal
quotation marks and ellipsis omitted). The intent to incorporate by reference must be discernible
within the contract’s four corners, see Rosenblum, 299 F.3d at 664, and the incorporation must
be “clear and specific,” 188 LLC, 300 F.3d at 736. “Mere reference to another contract or
document is not sufficient to incorporate its terms into a contract.” Rosenblum, 299 F.3d at 666.
Kogan contends that SAS incorporated EU 261 into its airfare contract through Paragraph
17.2 of the Conditions of Carriage. Doc. 140 at 8-11. Paragraph 17.2 reads in its entirety:
17.2 Limitation of Actions
Any right to Damages according to the [Montreal] Convention shall be
extinguished if an action is not brought within two years of the date of arrival
at destination, or the date on which the aircraft was scheduled to arrive, or the
date on which the Carriage stopped.
All other actions including actions relating to passenger rights subject to
Regulation (EC) 261/2004 shall be limited in accordance with national law.
The method of calculating the period of limitation shall be determined by the
law of the court where the case is heard.
Doc. 129-1 at 26. Also relevant is Article 9, which sets forth terms governing “delays,
cancellation of flights and closing down of routes.” Id. at 17. One of the terms covering delays
is Paragraph 9.3.4, which states:
If your flight is delayed 3 hours or more and if the delay is not caused by
Extraordinary Circumstances which could not have been avoided if all
reasonable measures had been taken you will be entitled to compensation if
provided by applicable law. For travel within EU and from a non-EU country
into EU applicable law is Regulation (EC) 261/2004.

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Id. at 18-19.
Paragraph 17.2 reflects no intent to incorporate EU 261 by reference. It merely
acknowledges the possibility that some passengers may have “rights subject to [EU 261],” and
then explains that, if any such passenger goes to court to assert those rights, the relevant
“national law” will dictate the statute of limitation. Beyond mentioning EU 261 in that way,
Paragraph 17.2 contains nothing to suggest that the parties intended to incorporate that body of
law by reference. Compare Rosenblum, 299 F.3d at 665-66 (holding that a contract did not
incorporate another agreement by reference where it “identifie[d]” the other agreement but was
“silent on incorporation”), with Polinovsky v. Deutsche Lufthansa, AG, 2012 WL 1080415, at *3
(N.D. Ill. Mar. 30, 2012) (holding that EU 261 was incorporated by reference where the airline’s
contract mentioned EU 261 and “included language stating its intent to provide compensation
according to EU 261 regulations”). The paragraph’s placement in Article 17, “Time limitation
on claims and actions,” Doc. 129-1 at 26, reinforces the conclusion that this provision was not
meant to define the parties’ substantive rights.
Airfare contracts that have been found to incorporate EU 261 by reference provide
instructive examples of the sort of specific language that SAS’s airfare contract might have used
if incorporation by reference had been the parties’ intent. In Polinovsky, the contract promised:
“[I]n the case of a flight cancellation or flight delay we offer assistance and compensation to the
concerned passengers according to [EU 261].” 2012 WL 1080415, at *3 (alterations in original)
(emphasis added). And in Giannopoulos v. Iberia Líneas Aéreas de España, S.A., 2011 WL
3166159 (N.D. Ill. July 27, 2011), the contract promised compensation “[a]s established in [EU
261].” Id. at *1 (alterations in original). The airfare contract here contains no such language.

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Paragraph 9.3.4 is further evidence that the contract does not incorporate EU 261 by
reference. Unlike Paragraph 17.2, Paragraph 9.3.4 is in the part of the contract that defines the
parties’ substantive rights, and it informs passengers that, in the event of an extended delay, they
will be compensated “if provided by applicable law.” Not “as provided”—but “if provided.”
This does not contractually promise any particular compensation for delays; instead, it simply
gives passengers notice that an extrinsic body of law may independently provide compensation.
See Onoh v. Nw. Airlines, Inc., 613 F.3d 596, 600 (5th Cir. 2010) (holding that a body of
international law was “not expressly incorporated into” an airfare contract, explaining that
concluding otherwise would be “a large stretch from … simple references to the need to comply
with all applicable law”); Dochak, 189 F. Supp. 3d at 803 (holding that the statement,
“passengers are entitled to rights provided for in” EU 261, “does not plausibly incorporate EU
261 but instead explains that those rights are defined and subject to the rules of EU 261”);
Polinovsky v. British Airways, PLC, 2012 WL 1506052, at *3 (N.D. Ill. Mar. 30, 2012) (holding
that an airline’s promise to compensate passengers “if required to do so by any law which may
apply” did not incorporate EU 261 by reference).
Moreover, the next sentence of Paragraphs 9.3.4 gives passengers notice of when EU 261
may be that extrinsic body of law: when they are traveling “within EU” or “from a non-EU
country into EU.” Neither of those situations describes Kogan’s flight from Copenhagen to
Chicago, so even if Paragraph 9.3.4 were meant to incorporate EU 261 by reference for some
passengers, Kogan would not be among them. See Wilson v. Career Educ. Corp., 729 F.3d 665,
678-79 (7th Cir. 2013) (Hamilton, J., concurring in part and dissenting in part) (applying “the
principle[] that … the expression of one or a few specific items … often implies the exclusion of

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others” to interpret a contract under Illinois law). Kogan therefore may not seek compensation
under the terms of EU 261.
II.

Montreal Convention
SAS also asks the court to grant partial summary judgment limiting Kogan’s damages

under the Montreal Convention to $695. Article 19 of the Montreal Convention permits
recovery for provable economic damages, but not emotional or physical injuries. See Campbell
v. Air Jamaica Ltd., 760 F.3d 1165, 1170 (11th Cir. 2014) (“The parties agree that Article 19
permits the payment of economic damages but does not contemplate compensation for emotional
loss or physical injury.”); Dochak, 189 F. Supp. 3d at 807 (“Although the Seventh Circuit has not
considered the question, Courts in other circuits have held that Article 19 permits the payment of
economic damages from a delayed flight but disallows compensation for emotional loss, physical
injury, or inconvenience.”) (collecting cases). In July 2016, the parties agreed that Kogan would
no longer pursue any damages based on income loss or illness. Doc. 100; Doc. 141 at 1.
Alongside her summary judgment response, Kogan moved for leave to withdraw from that
stipulation. Doc. 141. The court denied her motion on the grounds that it was untimely, offered
no explanation whatsoever for her delay in bringing it, and would prejudice SAS if granted.
Doc. 144. Accordingly, Kogan has waived any right to recover damages beyond $695—the
value of her remaining asserted damages—and the court will enforce the parties’ stipulation
limiting damages under the Montreal Convention to that amount.
Conclusion
For the foregoing reasons, SAS’s motion for partial summary judgment is granted. SAS
is awarded judgment on Kogan’s contract claims insofar as they seek compensation according to

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the terms of EU 261, and Kogan may seek no more than $695 on her Montreal Conventionrelated claims.

May 23, 2017
United States District Judge

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