Dana Herra Aug. 14, 2015, 4:25pm

A fourth attempt by a pair of airline travelers to sue United for reducing their perks under a seniors program fell flat on Aug. 10, when a three-justice panel of the Illinois First District Appellate Court upheld the Cook County Circuit Court’s dismissal of the case.

Plaintiffs Brian Warner and Daniel J. Driscoll had filed a class action suit on behalf of themselves and other lifetime members of United Airlines' Silver Wings Plus program, which offered savings and other benefits to fliers 55 and older. Warner purchased a lifetime membership in 2000 and Driscoll purchased one in 2002, according to court documents.

The men filed suit in 2012, charging United with breach of contract, breach of good faith and fair dealing, and specific performance. The lawsuit claimed United had stopped providing benefits to lifetime members in the program and had essentially abandoned the program altogether. The circuit court dismissed the suit the following summer, noting that no copy of the breached contract or the terms and conditions the plaintiffs said had been violated had been attached. Within three weeks, the men had filed an amended complaint, attaching pieces of correspondence from United, but that complaint was also dismissed, as none of the attachments was an actual contract, the judge said.

In 2014, Warner and Driscoll tried again, filing a second amended complaint. This time, the complaint said they had never executed a formal written contract with United, but that the terms of the contract were contained within the membership applications they had returned to the airline. They attached several exhibits to the second amended complaint, including a membership card, a screen shot of United’s website, an email to Warner from United, and two redacted letters about the program sent to unknown people five or more years before Warner and Driscoll had joined the program.

The circuit court again dismissed the complaint, and the appellate court upheld that decision. In United’s motion to dismiss, it included archived web pages about the Silver Wings Plus Program and two affidavits from United officials. One affidavit specified that the program’s terms and conditions reserved the airline’s right to change or terminate the program at any time. The motion to dismiss also argued that the five-year statute of limitations had run out on the lawsuit, since the men claimed the changes to the program had happened in 2005 and they didn’t file suit until seven years later. Warner and Driscoll filed a response, but, the court noted, it did not contain a counteraffidavit or any of the contract terms the court had asked for, nor did it address the statute of limitations argument.

“The [c]ourt has given multiple opportunities now to attach the written instrument, and it seems as though there is a refusal to do that,” the court wrote in its dismissal. “Because clearly there are terms and conditions out there.”

In the appellate panel’s unpublished order issued under Supreme Court Rule 23, Justice Joy V. Cunningham wrote that Warner and Driscoll contradicted their own position, claiming that there was no written contract, while failing to submit any of the correspondence they said contained the terms and conditions they claimed had been breached. In fact, one of the letters attached to their second amended complaint referenced a membership acceptance form the court could have construed as a contract. They also never submitted an affidavit claiming that correspondence was inaccessible to them.

Cunningham further wrote that even if the rules regarding written contracts did not apply, dismissal still would have been proper under the statute of limitations argument.

Cunningham delivered the judgment, with justices Mathias W. Delort and Sheldon A. Harris concurring.

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