Allianz Suisse Versicherungs-Gesellschaft v. Miller

Filing 56

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALLIANZ SUISSE
VERSICHERUNGS-GESELLSCHAFT,
Plaintiff,

Case No. 1:12-CV-1250

v.

HON. GORDON J. QUIST

KEVIN MILLER,
Defendant.
/

OPINION

INDEX

I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.

The National League Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B.

The Criminal Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C.

The Criminal Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

D.

The Civil Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

II. DISCUSSION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A.

Repugnant to Public Policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B.

Compatibility with Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALLIANZ SUISSE
VERSICHERUNGS-GESELLSCHAFT,
Plaintiff,

Case No. 1:12-CV-1250

v.

HON. GORDON J. QUIST

KEVIN MILLER,
Defendant.
/

OPINION
Plaintiff, 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, M.C.L.A. § 691.1131, et seq. In particular, Allianz seeks to enforce a Judgment
it obtained against Miller in the District Court of Zurich, Switzerland on March 29, 2010. Zurich
has filed a motion for summary judgment requesting entry of an order recognizing the Judgment as
conclusive between the parties and enforceable in Michigan. In response, Miller has filed his own
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.
For the reasons stated in this Opinion, the Court will grant Allianz’s motion, deny Miller’s
motion, and enter an order recognizing the Judgment as valid and enforceable under Michigan law.

I. BACKGROUND
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. (Dkt.
# 40-2 at Page ID 397.) As a result, McKim fell and hit his head on the ice. McKim suffered a nonlocalized concussion and other injuries, and was hospitalized for several weeks. Miller received
a five-minute penalty and a playing-time disciplinary penalty. (Dkt. # 1-3 at Page ID 9–10.)
A.

The National League Proceedings

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. (Id. at Page ID 10.) 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.
(Id.) Miller was not a party to the National League Tribunal proceedings, and the Tribunal did not
interview him or ask him questions. (Dkt. # 45-2 at Page ID 585, ¶ 9.) 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. (Id. ¶¶ 10–11.) At the insistence of the
President of HC Davos, Miller waived his appeal of the Tribunal’s decision. (Id. ¶ 12.) At the time,
Miller was unaware that the Tribunal’s decision could be used against him subsequently in criminal
or civil proceedings. (Id. ¶ 13.)

2

B.

The Criminal Proceedings

On December 10, 2004, the Public Prosecutor’s Office Division IV of the Canton of Zurich
charged Miller criminally with malicious simple bodily injury and grievous bodily injury. The
Zurich court invited Miller and his attorney to review the video recordings of the October 31, 2000
incident. (Dkt. # 41-1 at Page ID 491.) Prior to trial, Miller’s counsel viewed the recordings and
furnished slow motion images to the court. (Id.) The trial was held August 29, 2005. Miller
attended the trial and was permitted to testify. Miller admitted that he checked McKim, injuring
him “at least lightly,” but denied that his actions resulted in the serious injuries that McKim
sustained when he hit his head on the ice. (Id. at Page ID 493.) The court requested expert opinions
from two independent sources, Gerhard Müller, who evaluated the video, and Dr. med. R. Agosti,
a medical expert who opined on the injuries that McKim sustained and the causal relationship of the
“check” to the injuries. Both of the independent experts submitted reports to the court. Although
Miller’s counsel was not permitted to examine the independent experts, the court rules permitted
Miller’s counsel to submit written questions to Gerhard Müller and Dr. Agosti requesting
clarification of their opinions. (Dkt. # 41 at Page ID 477.) Miller’s counsel sent written questions
to Dr. Agosti. (Id.) It is unclear whether Miller’s counsel also sent written questions to Gerhard
Müller.1 Miller submitted opinions from his own experts, including Klaus Schilling, who answered
the same questions as independent expert Gerhard Müller, and Brian P. Burke, the President and
General Manager of the Vancouver Canucks. (Dkt. # 41 at Page ID 474–75, ¶ 20; dkt. # 41-3 at
Page ID 512–17.)

1

In support of its motion, Allianz presented evidence that Miller’s counsel had the opportunity to send written
questions to Gerhard M üller but did not do so. (Dkt. # 41 at Page ID 477, ¶ 35.) At oral argument on the instant
motions, however, Miller’s counsel maintained that Miller’s Swiss counsel did send written questions to Gerhard Müller.
W hether Miller’s counsel sent questions to Gerhard Müller is not material to the Court’s analysis.

3

On September 20, 2005, the criminal court issued a 36-page decision finding Miller guilty
of simple bodily harm, intentional bodily harm, and gross negligence. The court also found Miller
100 percent responsible for McKim’s injuries. (Dkt. # 41 at Page ID 475, ¶ 21.) In explaining its
decision, the criminal court accepted expert Gerhard Müller’s testimony as consistent with the video
evidence and concluded that Miller could and should have avoided the collision but instead intended
to deliver the blow to McKim. (Dkt. # 41-1 at Page ID 499-500.) The court rejected Miller’s
account as not credible and disregarded the testimony of Miller’s witnesses, including his experts,
as biased or irrelevant.2 (Dkt. # 41-2 at Page ID 502.)
C.

The Criminal Appeals

Miller appealed the guilty verdict to the Court of Appeals for the Canton of Zurich, which
accepted Miller’s legal analysis and interpretation of the evidence and found Miller not guilty.
McKim then appealed the acquittal to the Swiss Federal Court (Switzerland’s highest court). On
October 24, 2007, the Federal Court reversed the Zurich Court of Appeals and remanded for
reconsideration consistent with the Federal Court’s October 24, 2007 decision. (Dkt. # 41 at Page
ID 475–766.) Following the remand, the Court of Appeals issued a 31-page decision on April 3,
2008, finding Miller guilty of criminal minor bodily harm and criminal negligent bodily harm and
determining that Miller was 100 % liable for McKim’s injuries. (Dkt. # 1-3 at Page ID 91.) In
reaching its decision, the Court of Appeals relied on details and information that Miller provided,
as well as the expert opinions of Miller’s experts, Schilling and Burke. The court rejected
independent expert Gerhard Müller’s conclusion that Miller acted out of frustration. (Dkt. # 40-4
at Page ID 448, 453.) The court concluded that Miller did not act with direct intent to injure

2

The criminal court imposed three months’ imprisonment but suspended the sentence in favor of two years of
probation. (Dkt. # 40-2 at Page ID 418.)

4

McKim, but did act with “contingent intent” in disregarding the risk associated with checking
someone from the rear. (Id.) Miller did not appeal the Court of Appeals’ decision within 30 days,
as permitted by Swiss law.3
D.

The Civil Case

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.4 Miller was represented by the same attorney who represented him in the criminal proceedings,
as well as an additional attorney whom Miller retained for the civil proceedings. 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. (Dkt. # 41 at Page ID
478.)
The civil court issued the 69-page Judgment at issue in this case on March 17, 2010. The
judge5 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. (Dkt. # 1-3 at Page ID 91.) 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.” (Id. at Page ID 122.) In concluding that

3

The Court of Appeals did not reinstate the sentence imposed by the criminal court.

4

Under Swiss law, a defendant’s criminal and civil liability are generally determined by the criminal court in
a single proceeding, but the issue of monetary compensation is determined in a separate civil proceeding. (Dkt. # 41
at Page ID 477-78.)
5

It is unclear to the undersigned whether this District Court of Zurich had one or more than one judge.

5

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. (Id. at Page ID 126.)
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. (Id. at Page ID 43–44.) 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.” (Id. at Page ID 44.) 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.
II. DISCUSSION
In a diversity action for recognition of a foreign country judgment, the court must apply state
law. See Success Motivation Inst. of Japan Ltd. v. Success Motivation Inst., Inc., 966 F.2d 1007,
1009 (5th Cir. 1992); Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir. 1987)
(noting that the question of recognition and enforcement of a Belgian judgment was to be resolved
under Illinois law). In this case, the Court applies the Uniform Foreign-Country Money Judgments
Recognition Act (FCMJRA), which Michigan has adopted. The FCMJRA applies to foreign6

country judgments that grant or deny recovery of a sum of money and that are final, conclusive, and
enforceable under the law of the foreign country.6 M.C.L.A. § 691.1133(2).
Section 4 of the FCMJRA, which sets forth the grounds for recognition and non-recognition,
provides in pertinent part:
(1) Except as otherwise provided in subsections (2) and (3), a court of this
state shall recognize a foreign-country judgment to which this act applies.
(2) A court of this state shall not recognize a foreign-country judgment if any
of the following apply:
(a) The judgment was rendered under a judicial system that does not provide
impartial tribunals or procedures compatible with the requirements of due process
of law.
(b) The foreign court did not have personal jurisdiction over the defendant.
(c) The foreign court did not have jurisdiction over the subject matter.
(3) A court of this state need not recognize a foreign-country judgment if any
of the following apply:
....
(c) The judgment or the cause of action on which the judgment is based is
repugnant to the public policy of this state or of the United States.
....
(h) The specific proceeding in the foreign court leading to the judgment was
not compatible with the requirements of due process of law.
(4) A party resisting recognition of a foreign-country judgment has the
burden of establishing that a ground for nonrecognition stated in subsection (2) or
(3) exists.
M.C.L.A. § 691.1134. The grounds set forth in subsection (2) mandate nonrecognition, while the

6

The FCMJRA does not apply to a foreign-country money judgment that is for taxes, a fine or other penalty,
or divorce, support, maintenance, or other domestic relations-related matter. M.C.L.A. § 691.1133(2). Miller concedes
that the Judgment was not rendered for any of those purposes.

7

grounds set forth in subsection (3) are discretionary. See Chevron Corp. v. Naranjo, 667 F.3d 232,
239 (2d Cir. 2012).
Allianz has met its burden of showing that the FCMJRA applies to the Judgment because
it is undisputed that the Judgment awards a sum of money to Allianz and is final, conclusive, and
enforceable under Swiss law. See M.C.L.A. § 691.1133(3) (a party seeking recognition of a foreign
judgment has the burden of showing that the FCMJRA applies to the judgment). Miller does not
dispute that the FCMJRA applies to the Judgment, nor does he assert that he was not subject to
personal jurisdiction in the Swiss courts or that the Swiss courts lacked subject matter jurisdiction.
Finally, Miller does not argue that Switzerland’s judicial system “does not provide impartial
tribunals or procedures compatible with the requirements of due process of law.”7 M.C.L.A. §
691.1134(2)(a); see Medoil Corp. v. Citicorp, 729 F. Supp. 1456, 1460 (S.D.N.Y. 1990) (“Swiss
courts are a fair and reasonable forum for resolution of disputes.”). Miller contends, however, that
the Court should decline to recognize the Judgment under the discretionary grounds that it is
repugnant to the public policy of Michigan and the United States and that the proceeding giving rise
to the Judgment was not compatible with the requirements of due process.

M.C.L.A. §

691.1134(3)(c), (h).
A.

Repugnant to Public Policy

Establishing the public policy ground for nonrecognition of a foreign judgment is a difficult
task. This doctrine is “rarely relied upon.” Tahan v. Hodgson, 662 F.2d 862, 866 n.17 (D.C. Cir.
1981). “[F]ew judgments fall in the category of judgments that need not be recognized because they
7

There is some question as to whether the proponent of the judgment to be recognized has the burden of proving
that no mandatory basis for nonrecognition exists or whether the party opposing enforcement of the judgment must prove
that such a basis exists. See Chevron Corp. v. Donziger, 886 F. Supp. 2d 235, 278 n.269 (S.D.N.Y. 2012) (citing cases
reaching different conclusions). The Court need not determine the issue conclusively, however, because there is no
dispute that there is no basis for mandatory nonrecognition.

8

violate the public policy of the forum.” Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 1003 (9th Cir.
2013) (internal quotation marks omitted). “It has long been the law that unless a foreign country’s
judgments are the result of outrageous departures from our own [n]otions of civilized jurisprudence,
comity should not be refused.” Id. (internal quotation marks omitted). “The standard is high, and
infrequently met. . . . In the classic formulation, a judgment that ‘tends clearly’ to undermine the
public interest, the public confidence in the administration of the law, or security for individual
rights of personal liberty or of private property is against public policy.” Ackermann v. Levine, 788
F.2d 830, 841 (2d Cir. 1986) (quoting Somportex v. Philadelphia Chewing Gum, 453 F.2sd 435, 443
(3d Cir. 1971)); see also Soc’y of Lloyd’s v. Turner, 303 F.3d 325, 331–32 (5th Cir. 2002) (noting
the requirement of a high level of contravention of Texas law to justify application of the public
policy ground for nonrecognition). According to the commentary to the Uniform Act, the test is
“stringent.” Uniform Foreign-Country Money Judgments Recognition Act § 4, cmt. 8 at 12 (2005).
A difference in law, “even a marked one,” is not enough. Id. Instead,
Public policy is violated only if the recognition or enforcement of the foreigncountry judgment 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.”
Id. (quoting Hunt v. BP Exploration Co. (Libya) Ltd., 492 F. Supp. 885, 901 (N.D. Tex. 1980)).
Miller contends that the Judgment is repugnant to the public policy of Michigan and the
United States because he was denied the right of confrontation in the Swiss proceedings and because
the Judgment relies on the decision rendered in the National League hockey proceeding, to which
Miller was not a party.8 Neither argument meets the stringent standard set forth above.

8

Miller does not argue that the Swiss cause of action is repugnant to public policy.

9

Miller contends that he was denied the right of confrontation because he was not permitted
to confront the independent expert, Gerhard Müller, who opined about Miller’s intent at the time of
the incident. Miller contends that denial of the opportunity to cross-examine Gerhard Müller was
detrimental to his defense because Gerhard Müller’s report, which concluded that Miller acted with
the intent to injure McKim, provided the basis for both criminal and civil liability. As Miller’s
counsel conceded at oral argument, however, the right of confrontation is a right that applies only
in criminal cases. See Austin v. United States, 509 U.S 602, 608 & n.4, 113 S. Ct. 2801, 2804 & n.4
(1993). Miller argues, however, that the right of confrontation pertains to the specific circumstances
of this case because Miller’s civil liability was determined in a criminal proceeding—in which the
right of confrontation would be available in a United States court—and there is no way to extricate
his civil from his criminal liability.
The simple answer is that Allianz is not asking the Court to recognize a criminal judgment.
Instead, the Judgment is a civil judgment, rendered at the conclusion of a separate civil proceeding,
that does not impose a fine or penalty that may be considered criminal in nature. Although the judge
in the civil proceeding acknowledged and considered the Swiss criminal proceedings, the Swiss civil
proceeding displayed all of the hallmarks of fundamental fairness. Miller was represented by
counsel and was permitted to present evidence and make arguments to the court. Moreover, the civil
judge’s exhaustive Judgment reveals that the civil judge considered all of the evidence, including
the video evidence of the hit, addressed the arguments that Miller raised, and gave cogent reasons
for his decision.
As noted above, Miller was not totally deprived of the opportunity to flesh out the basis for
Gerhard Müller’s opinion. Miller had the opportunity to submit written questions to Gerhard Müller
regarding his opinion. While Miller, no doubt, would have preferred to cross-examine Gerhard
10

Müller, “the [FCMJRA] does not require that the procedures employed by the foreign tribunal be
identical to those employed in American courts.” Ingersoll Milling Mach. Co., 833 F.2d at 687
(italics in original); see also Soc’y of Lloyd’s v. Reinhart, 402 F.3d 982, 994 (10th Cir. 2005) (“The
procedures the English courts afford need not be identical to ours, they must only be compatible in
that they do not offend the notion of basic fairness.”). “[A] mere difference in the procedural system
is not a sufficient basis for nonrecognition.”

Uniform Foreign-Country Money Judgments

Recognition Act § 4, cmt. 5 at 10. In Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895)—the
seminal case in the area of foreign judgments—the Court stated that it was “not prepared to hold that
the procedure [of the foreign country court] differed from that of our own courts is, of itself, a
sufficient ground for impeaching the foreign judgment.” Id. at 205, 16 S. Ct. at 159. In the French
proceeding at issue in Hilton, one of the plaintiffs was permitted to testify under oath and was not
subjected to cross-examination by the defendant, and documents and papers having no connection
to the defendants—which would not have been admissible in the United States system of
justice—were admitted. Because “the practice followed and the method of examining witnesses
were according to the laws of France,” the Court found no basis for nonrecognition. Id. at 204–05,
16 S. Ct. at 159. In this case, Miller concedes that Swiss law does not allow for cross-examination
of expert witnesses. Thus, as Hilton teaches, the unavailability of cross-examination in Swiss courts
is a mere difference in procedure that does not trigger the public policy exception. See Loucks, ex
rel. Loucks v. Standard Oil Co. of N.Y., 224 N.Y. 99, 111, 120 N.E. 198, 201 (1918) (“We are not
so provincial as to say that every solution of a problem is wrong because we deal with it otherwise
at home.”) (Cardozo, J.).
Bachchan v. India Abroad Publications, Inc., 154 Misc. 2d 228, 585 N.Y.S. 2d 661 (1992),
which Miller cites as supporting his argument, is inapposite to this case. The plaintiff in Bachchan
11

sought recognition of an English libel judgment. The court refused to enforce the judgment because
English law lacks the protections afforded by the First Amendment. In particular, the court noted
that English law requires the defendant to prove the truth of the allegedly defamatory statements,
does not distinguish between matters of public and private concern, and requires no showing of fault
in any degree. 154 Misc. 2d at 234, 585 N.Y.S.2d at 664–65. The court observed that “[t]he
protection of free speech and the press embodied in [the First Amendment] would be seriously
jeopardized by the entry of foreign libel judgments granted pursuant to standards deemed
appropriate in England but considered antithetical to the protections afforded the press by the U.S.
Constitution.” Id. at 235, 585 N.Y.S. 2d at 665. The same cannot be said here. There is no
indication that the substantive Swiss law, including burdens of proof, was so at odds with domestic
legal principals that it was “antithetical to the protections afforded . . . by the U.S. Constitution.”
In fact, having read the Swiss civil court’s analysis of the facts and law, the Court notes that it is
substantially similar to what would occur in a bench trial in the United States.
Miller also argues that the Judgment is repugnant to the public policy of Michigan because
it relies on the National League hockey proceeding to which Miller was not granted status as a party.
Specifically, Miller contends that use of the National League proceeding to establish his liability is
contrary to notions of fundamental fairness embodied in preclusion doctrines, such as collateral
estoppel, that preclude use of determinations made in prior proceedings against a person who was
not a party in the prior proceeding. This Court disagrees because the Swiss civil court did not
accord preclusive effect to the National League proceeding that determined that Miller intentionally
injured McKim. Rather, the Swiss court considered the hockey tribunal’s determination along with
the other evidence presented, including the video evidence, and drew its own conclusions.
Moreover, Miller admits that he waived his appeal of the hockey tribunal’s decision, and nothing
12

prevented him from obtaining counsel for advice on the consequences of waiving the appeal or
whether he should intervene in the proceeding. Finally, Miller chose not to attend and participate
in the civil trial, and there is no indication that his counsel raised this issue with the civil court. See
Ingersoll Milling Mach. Co., 833 F.2d at 687 (“[G]iven that there were no witnesses, due at least in
part to Ingersoll’s own tactical decision, Ingersoll cannot point to the lack of cross-examination as
a violation of due process.”). Thus, the Swiss court’s consideration of the hockey tribunal decision
in the civil trial was not repugnant to Michigan public policy.
B.

Compatibility with Due Process

Subsection 4(c)(8) of the FCMJRA focuses on due process in “[t]he specific proceeding.”
While the focus of subsection 4(b)(1) is on the foreign country’s judicial system as
a whole, the focus on subsection 4(c)(8) is on the particular proceeding that resulted
in the specific foreign-country judgment under consideration. Thus, the difference
is that between showing, for example, that there has been such a breakdown of law
and order in the particular foreign country that judgments are rendered on the basis
of political decisions rather than the rule of law throughout the judicial system versus
a showing that for political reasons the particular party against whom the foreigncountry judgment was entered was denied fundamental fairness in the particular
proceedings leading to the foreign-country judgment.
Uniform Foreign-Country Money Judgments Recognition Act § 4, cmt. 12 at 13.
The Seventh Circuit has described due process under the FCMJRA as an “‘international
concept of due process’ to distinguish it from the complex concept that has emerged from American
case law.” Soc’y of Lloyd’s v. Ashenden, 233 F.3d 473, 477 (7th Cir. 2000). The court explained,
It is a fair guess that no foreign nation has decided to incorporate our due process
doctrines into its own procedural law; and so we interpret “due process” in the
Illinois statute (which, remember, is a uniform act, not one intended to reflect the
idiosyncratic jurisprudence of a particular state) to revert to a concept of fair
procedure simple and basic enough to describe the judicial processes of civilized
nations, our peers.
Id. at 476-77; see also Reinhart, 402 F.3d at 994 (“The procedures the English courts afford need
13

not be identical to ours, they must only be compatible in that they do not offend the notion of basic
fairness.”).
Miller’s due process arguments fare no better than his public policy arguments. Miller again
points to the hockey tribunal proceeding, arguing that it was fundamentally unfair for the Swiss
courts to use that decision against him, both in the criminal proceeding—which determined Miller’s
civil liability—and in the civil proceeding, which produced the Judgment. As shown above, use of
the hockey tribunal decision against Miller was not fundamentally unfair. The hockey tribunal
decision was not given preclusive effect in any of the court proceedings, but was simply one piece
of evidence that the courts considered. Moreover, Miller could have appealed the hockey tribunal
decision, but elected not to do so. Thus, use of that decision as evidence was not contrary to due
process.
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.
14

Finally, Miller contends that he was not afforded due process in the civil proceeding because
the judge endorsed the prior criminal decision, which determined Miller’s civil liability, relied on
the hockey tribunal decision, and cited Gerhard Müller’s expert opinion as the primary basis for his
finding of liability. As has already been pointed out, these items were only part of the body of
evidence submitted to the civil court judge, which included evidence that Miller himself submitted.
In addition, the civil court judge specifically noted that he was not bound by the criminal court
decision, but was permitted to consider the evidence anew. A review of the Judgment shows that
he did so and considered Miller’s evidence and arguments. In sum, the Court cannot say that the
Judgment presents a serious injustice or lacks basic fairness, such that nonrecognition is appropriate.
III. CONCLUSION
For the foregoing reasons, the Court will grant Allianz’s Motion for Summary Judgment,
deny Miller’s Motion for Summary Judgment, and enter an order recognizing the Judgment.
A separate order and judgment will enter.

Dated: June 5, 2014

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

15