They Just Wanted To. Fifth District Appellate Rules On Waiver Of Preemption Defense.

This one falls into the category of “I guess they just wanted to.” It impresses the power of an appellate court to do as it pleases, and for no particular reason.

Jeffrey Hicks brought a class-action lawsuit against Airborne Express, claiming that Airborne did not deliver packages at guaranteed times. On appeal, Airborne claimed that Hicks’s contract claim was preempted by the Airline Deregulation Act. Hicks argued that Airborne waived the argument because it failed to raise the defense in the trial court.

The opinion does not state how Airborne defended the waiver argument. Nor does it provide a reason for overlooking it. After stating the rule that waiver limits the parties but not the jurisdiction of the court, the appellate court stated only, “We choose to address the issue.” No reason was provided.

Caesura. The appellate court ruled the Airline Deregulation Act did not preempt the contract claim, so Hicks won that battle. But he lost the war. The court affirmed summary judgment in favor of Airborne, ruling that Hicks was limited to the exclusive remedy provision in his contract with Airborne (a free shipment), and not to common law damages.

Click here for the whole case, Hicks v. Airborne Express, 367 Ill. App. 3d 1005, No. 5-04-0793 (7/25/06).