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Zvunca v. Greyhound Lines, Inc.

United States Court of Appeals, Tenth Circuit

July 23, 2013

CRISTINA ZVUNCA, by and through her Legal Guardian, Tiberiu Klein, Plaintiff-Appellant,
v.
GREYHOUND LINES, INC., Defendant-Appellee. TIBERIU KLEIN, individually and as Executor of the Estate of Claudia Zvunca, Plaintiff-Appellant,
v.
WESLEY JAY TATUM; GREYHOUND LINES, INC., Defendant-Appellee.

D. Colo., D.C. Nos. 1:10-CV-01701-RPM, 1:02-CV-01827-RPM-GJR.

Before LUCERO, MURPHY, and MATHESON, Circuit Judges.

ORDER AND JUDGMENT [*]

Carlos F. Lucero, Circuit Judge

In these consolidated appeals, Tiberiu Klein appeals the district court's dismissal of his wrongful death suits. While this case was pending before our court, the Illinois settlement order on which the district court based its dismissal was vacated by the Illinois Appellate Court. Cushing v. Greyhound Lines, Inc., No. 1-10-3194, 2013 IL App (1st) 103197 (Ill.App.Ct. May 16, 2013). Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the district court's dismissal orders and remand for further proceedings.

I

On January 15, 2002, a Greyhound Lines, Inc. ("Greyhound") bus traveling from Las Vegas, Nevada, to Chicago, Illinois, struck and killed passenger Claudia Zvunca during a stop in Grand Junction, Colorado, as she attempted to board the bus. Her daughter, Cristina Zvunca, who was eight years old, witnessed the accident. Tiberiu Klein, an Illinois resident, was married to Claudia at the time of the accident; however, Klein is neither Cristina's biological nor adoptive father.

Charles Dickens could not have imagined a more tortured procedural history preceding this appeal. In May 2002, Klein, "individually and as Executor of the Estate of Claudia Zvunca, " filed suit against Greyhound and the bus driver, Wesley Jay Tatum, in the Circuit Court for Cook County, Illinois, under the Illinois Wrongful Death Act. Klein had not been appointed representative of Claudia's estate; however, Greyhound never challenged his statements to the contrary. The action was removed to federal court by Greyhound and then transferred to the District of Colorado.

In September 2004, the independent administrator of Claudia's estate brought suit against Greyhound, Tatum, and Motor Coach Industries, Inc. ("Motor Coach"), the bus manufacturer, in the Circuit Court for Cook County in Illinois (hereinafter "Cook County case") under the Illinois Wrongful Death Act.

On April 15, 2005, the District of Colorado denied Greyhound's motion to schedule a pretrial conference and a jury trial, concluding that the then-pending Cook County case should take precedence because it also included claims against the bus manufacturer, Motor Coach, which could not be joined in the Colorado case because doing so would destroy diversity jurisdiction. Greyhound's motion in the Cook County case to stay that action was also denied because Greyhound did not "establish the threshold requirement that the [Colorado] action involve[d] the same parties."

In May 2005, a guardian ad litem was appointed for Cristina, and F. John Cushing was appointed as the independent administrator of Claudia's estate, replacing the initial administrator who had resigned the previous month. During 2007 and 2008, Klein filed various petitions to remove Cushing and to intervene in the Illinois action, all of which were denied.

In November 2007, Klein filed a petition in the probate division of the Illinois courts for guardianship of Cristina. In July 2008, Klein was appointed plenary guardian of the "estate and person" of Cristina by the probate division. However, it is unclear whether the probate division was informed of the proceedings in the law division, in which the Cook County court noted that Klein had not been appointed to act as Cristina's guardian because Klein's and Cristina's interests were potentially divergent. See Marshall v. Motor Coach Indus. Int'l, Inc., No. 1-05-0701, slip op. at 2-3 (Ill.App.Ct. Sept. 30, 2005) (unpublished).

After the Illinois trial court appointed a special administrator for Claudia's estate in 2010, the appellate court vacated that order and held that the trial court lacked authority to appoint a special administrator because a probate estate had been opened. Cushing v. Greyhound Lines, Inc., 965 N.E.2d 1215, 1235 (Ill.App.Ct. 2012). It explained that as the personal representative of the decedent, barring Cushing's removal, Cushing had the exclusive authority to bring a wrongful death action. Id. at 1233.

On July 19, 2010, Klein, on behalf of Cristina, filed a second action in Colorado district court for various claims of negligence against Tatum and Greyhound. According to Klein, this was an action brought solely on behalf of Cristina for her own personal injuries. In addition, Klein asserted in the complaint that he was "the duly appointed Legal Guardian of Cristina Zvunca. Mr. Klein was appointed Legal Guardian on July 18, 2008 when Ms. Zvunca was 14 years old. Letters of Guardianship are attached hereto." However, no such letters were attached.

Meanwhile, Greyhound, Tatum, and the estates of Cristina and Claudia reached a settlement agreement in the Cook County case. On June 10, 2010, and September 1, 2010, respectively, the Cook County trial court held that Greyhound's and Motor Coach's offers in settlement were made in good faith and in the best interests of Cristina. The settlement agreement provided for the release of all claims against Tatum and Greyhound, and the trial judge signed the agreement on behalf of Cristina and the estate of Claudia. Accordingly, on September 24, 2010, the Cook County ...


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