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Nos. 1-99-1918 & 1-99-1945; Cons.
                                                                                                           SIXTH DIVISION
                                                                                                           October 13, 2000

Plaintiffs Northbrook Property and Casualty Insurance Company, St. Paul Surplus LinesInsurance Company, and Royal Indemnity Company filed declaratory judgment actions seeking adeclaration that they owed no duty to defend or indemnify their insured, GEO InternationalCorporation (GEO), against a third- party lawsuit filed by Halliburton Company and HalliburtonEnergy Services, Inc. (collectively referred to as Halliburton). The circuit court dismissed plaintiffs'declaratory judgment complaints pursuant to section 2-619(a)(3) of the Code of Civil Procedure (735ILCS 5/2-619(a)(3)(West 1996)), finding that the third-party claims brought by Halliburton againstGEO involved the same parties and the same cause as plaintiffs' declaratory judgment actions. Plaintiffsappeal. We reverse and remand.

This case arises out of a personal injury action filed in Alaska against Halliburton for injuriesallegedly caused by the explosion of an oil-well perforating gun designed by GEO and manufacturedby Halliburton. Halliburton in turn filed a third-party action against GEO for contribution andindemnification. In its third-party complaint, Halliburton acknowledged that GEO "is presently subjectto a protective stay in bankruptcy [and therefore] [a]ny claims by Halliburton against [Geo] is limitedto any applicable insurance proceeds." Accordingly, the Alaskan court entered an order requiringHalliburton to "restrict its recovery to any available insurance proceeds."

GEO's insurers, plaintiffs Northbrook Property and Casualty Insurance Company (Northbrook),St. Paul Surplus Lines Insurance Company (St. Paul), and Royal Indemnity Company (Royal),subsequently filed declaratory judgment actions in Illinois, seeking a declaration that they owed no dutyto defend or indemnify GEO in the underlying Alaska litigation because GEO did not timely notifythem of the suit. St. Paul and Royal also sought a declaration that they owed no duty to defend orindemnify GEO because their policies expired prior to the underlying occurrence.

In their respective pleadings, Northbrook, St. Paul, and Royal (hereinafter referred to collectivelyas plaintiffs) all named Halliburton as a defendant. Halliburton responded by filing a motion to dismisspursuant to section 2-619(a)(3), arguing that the third-party action that it had filed against GEO inAlaska involved the same parties and the same cause as the declaratory judgment actions filed byplaintiffs in Illinois. The circuit court granted Halliburton's motion to dismiss, finding that plaintiffswere the real parties in interest in the Alaska third-party action and that the Alaska third-party actioninvolved the same parties and the same cause as the Illinois action. Plaintiffs filed this timely appeal.

Section 2-619(a)(3) states:

"(a) Defendant may, within the time for pleading, file a motion for dismissal ofthe action or for other appropriate relief upon any of the following grounds. Ifthe grounds do not appear on the face of the pleading attacked the motion shallbe supported by affidavit:

(3) That there is another action pending between the same parties for the samecause." 735 ILCS 5/2-619(a)(3)(West 1996).

Every section 2-619(a)(3) movant must demonstrate by clear and convincing evidence that thetwo actions involve the same parties and the same cause. Hapag-Lloyd (America), Inc., v. HomeInsurance Co., 312 Ill. App. 3d 1087, 1091 (2000). Yet, even if the movant has established both the sameparties and the same cause, the circuit court retains the discretion to grant or deny the section 2-619(a)(3)motion. Hapag-Lloyd, 312 Ill. App. 3d at 1091. In its discretion, the circuit court should consider thefollowing factors when deciding whether to dismiss an action pursuant to section 2-619(a)(3): (1) comity;(2) the prevention of multiplicity, vexation and harassment; (3) the likelihood of obtaining completerelief in a foreign jurisdiction; and (4) the res judicata effect of a foreign judgment in the local forum. Hapag-Lloyd, 312 Ill. App. 3d at 1091. The circuit court's decision on a section 2-619(a)(3) motion todismiss is reversed only if the circuit court abused its discretion. Kapoor v. Fujisawa Pharmaceutical Co.,298 Ill. App. 3d 780, 786 (1998).

Plaintiffs were not named parties in the Alaska third-party action at the time that the Illinoiscircuit court granted the section 2-619(a)(3) motion to dismiss. Thus, the Alaska third-party actionliterally did not involve the same parties as the Illinois action. However, the parties in the two actionsneed not be identical in order to be considered the "same parties" for purposes of a section 2-619(a)(3)motion. Kapoor, 298 Ill. App. 3d at 786. The "same parties" requirement is satisfied when the litigants'interests are sufficiently similar, even if the litigants differ in name or number. Kapoor, 298 Ill. App. 3dat 786. No bright-line test exists for determining whether the litigants' interests are sufficiently similar;instead, each case is decided on a case-by-case basis after considering all the relevant facts. See, e.g.,Kapoor, 298 Ill. App. 3d 780; Golden Rule Insurance Co. v. Robeza, 151 Ill. App. 3d 801 (1986).

In the present case, Halliburton argues that plaintiffs share sufficiently similar interests in boththe Alaska third-party action and the Illinois declaratory judgment action and, thus, are the same partiesfor purposes of the section 2-619(a)(3) motion to dismiss. Specifically, Halliburton argues that theAlaska trial court expressly authorized Halliburton to sue GEO in Alaska strictly as a nominal defendantfor the purpose of proceeding against GEO's insurers (plaintiffs). Halliburton also notes that the Alaskatrial court expressly ordered Halliburton to "restrict its recovery to any available insurance proceeds." (Emphasis added.) Halliburton contends that by including the word "available," the Alaska court meantthat Halliburton could recover GEO's insurance proceeds only upon a finding that GEO was, in fact,entitled to coverage. Thus, Halliburton argues that the availability of insurance coverage is necessarilyat issue in the Alaska third-party action and that the same issue (the availability of insurance coverage)is at the heart of plaintiffs' Illinois declaratory judgment action. Thus, Halliburton argues that plaintiffs'interests in the Alaska and Illinois actions are sufficiently similar such that plaintiffs can be consideredthe same parties in both actions for purposes of section 2-619(a)(3).

We disagree. Plaintiffs' interest in the Illinois action is to secure a declaration that there is nocoverage under the policies and that plaintiffs therefore have no duty to defend or indemnify GEOagainst the third-party lawsuit filed by Halliburton. However, plaintiffs' interest is not shared by thetwo parties in the Alaska third-party action, specifically, Halliburton and GEO. Halliburton has aninterest in favor of coverage so that funds are available for GEO to indemnify Halliburton for any moniesthat it pays to the personal injury plaintiffs. The other party, GEO, is a nominal party without anyfinancial stake in the Alaska litigation and thus has no interest with regard to the coverage issue. Sinceplaintiffs' interests are not being represented by any of the parties in the Alaska third-party action, thecircuit court abused its discretion in finding that the plaintiffs were the same parties in the Illinois andAlaska actions for purposes of section 2-619(a)(3).

As an alternative argument for reversing the dismissal order, plaintiffs argue that Alaskan lawprohibits direct actions against liability insurers; therefore, plaintiffs argue that the insurance coverageissues presented in the Illinois action cannot be adjudicated in the Alaska third-party action. Halliburtonresponds by citing Weaver Brothers, Inc. v. Chappel, 684 P.2d 123 (Alaska 1984), as holding thatinsurance coverage disputes may be adjudicated in the Alaska third-party action. We need not resolvethis issue because, as discussed above, plaintiffs are not the same parties in the Illinois and Alaska actionsfor purposes of section 2-619(a)(3) and therefore we reverse the circuit court's dismissal order.

For the foregoing reasons, we reverse and remand.

Reversed and remanded.

BUCKLEY and GALLAGHER, JJ., concur.