Skidmore v. Gateway Western Railroad Co.

Case Date: 09/09/2002
Court: 5th District Appellate
Docket No: 5-01-0710 Rel

Notice

Decision filed 09/09/02. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0710

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


EDITH SKIDMORE, Special Administrator of the ) Appeal from the
Estate of Clifford Skidmore, Deceased, ) Circuit Court of
) St. Clair County.
              Plaintiff-Appellee, )
)
v. ) No. 00-L-557
)
GATEWAY WESTERN RAILWAY COMPANY, ) Honorable
) Stephen M. Kernan,
             Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Edith Skidmore (plaintiff), special administrator of the estate of Clifford Skidmore,deceased, filed a wrongful-death action against Gateway Western Railway Company(defendant) in the circuit court of St. Clair County, Illinois. The action arose from a railroadcrossing accident that occurred in Lafayette County, Missouri. The circuit court denied defendant's motion to dismiss the case on the grounds of interstate forum non conveniens. Defendant petitioned for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2)(166 Ill. 2d R. 306(a)(2)), alleging that the circuit court's decision was an abuse ofdiscretion. We granted leave to appeal and now consider the issue.

At approximately 7:30 a.m. on March 15, 2000, a train operated by the defendant'screw struck a vehicle operated by Clifford Skidmore. The incident occurred at a railroadgrade crossing in Mayview, Lafayette County, Missouri. A trooper with the Missouri StateHighway Patrol responded to the accident scene and conducted the initial investigation. Afew hours later the scene was turned over to the Missouri State Highway Patrol accidentreconstruction team for further investigation. Emergency medical personnel from nearbyHigginsville, Missouri, responded to the scene. Mr. Skidmore was evaluated and thenairlifted to Kansas City Research Hospital in Kansas City, Missouri, where he waspronounced dead a short time later. Mr. Skidmore died as a result of the injuries hesustained in the collision. At the time of this incident, Clifford Skidmore lived in LafayetteCounty, Missouri, with his spouse, Edith Skidmore, and their two minor children.

On September 19, 2000, the circuit court of St. Clair County, Illinois, approvedplaintiff's petition for her appointment as the special administrator of the estate of CliffordSkidmore. On that same day, she filed a wrongful-death action against defendant in St. ClairCounty, Illinois. Defendant filed a motion to dismiss the case on interstate forum nonconveniens grounds, claiming that the public- and private-interest factors weighed heavilyin favor of a dismissal. Defendant claimed that the case could be tried more efficiently andconveniently in the Missouri circuit court located in Lexington, Lafayette County, Missouri. The St. Clair County circuit court denied defendant's motion, and defendant petitioned forleave to appeal.

Before addressing the forum non conveniens issue, we will address defendant's motion to disqualify plaintiff's counsel. Defendant's motion was filed during the pendencyof this appeal. We ordered that the motion be taken with the case, in order to provide theparties with the opportunity to address the issue during oral argument. In its motion,defendant contends that plaintiff's counsel has a conflict of interest and should bedisqualified from representing plaintiff in this case. According to the record, plaintiff'scounsel currently represents Thomas Sullivan, the engineer of the train involved in thepending case, in an unrelated personal injury action against defendant and other railroadcompanies. Defendant contends that plaintiff's counsel is not permitted to engage in exparte contacts with Mr. Sullivan without its consent because Mr. Sullivan "has the status ofa represented party with respect to his conduct in operating the locomotive at the time of theaccident and also with respect to admissions he may make in testifying in this case".

Matters of representation regarding lawsuits pending in Illinois are governed byIllinois law. According to the record, Thomas Sullivan is not a named party in the pendingaction. He is a potential witness. There is no showing that Thomas Sullivan is an employeewith decision-making or advisory responsibilities within defendant's corporation. UnderIllinois law, he is not a member of the corporate control group. See Consolidation Coal Co.v. Bucyrus-Erie Co., 89 Ill. 2d 103, 432 N.E.2d 250 (1982). Defendant has not establisheda basis upon which to disqualify plaintiff's counsel from further participation in this case,and the motion is denied.

A trial court has considerable discretion in ruling on a forum non conveniens motion,and the court's decision to grant or deny that motion will not be reversed absent an abuse ofdiscretion. Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 503, 490 N.E.2d 694, 699(1986). The reviewing court does not decide whether the trial judge exercised his or herdiscretion wisely, but only whether it has been abused. Brummett, 111 Ill. 2d at 503, 490N.E.2d at 699.

The doctrine of forum non conveniens presupposes the existence of more than oneforum in which the case may be litigated. Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d359, 364, 456 N.E.2d 98, 100 (1983). It is a doctrine that allows the circuit court to declinejurisdiction where a trial in another forum "would better serve the ends of justice". Vinsonv. Allstate, 144 Ill. 2d 306, 310, 579 N.E.2d 857, 859 (1991). To determine whether thedoctrine applies, the circuit court must balance the private-interest factors affecting theconvenience of the parties and the public-interest factors impacting the court's administrationof its docket. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 91 L. Ed. 1055, 1062-63, 67S. Ct. 839, 843 (1947); Torres v. Walsh, 98 Ill. 2d 338, 345, 456 N.E.2d 601, 604-05 (1983). The public-and-private-interest-factors assessment is applicable in considering bothinterstate and intrastate forum non conveniens motions. See Kwasniewski v. Schaid, 153 Ill.2d 550, 553, 607 N.E.2d 214, 216 (1992). In considering an interstate forum nonconveniens motion filed in a suit pending in an Illinois court, the focus is on Illinois'sconnections with the litigation and whether the applicable public- and private-interest factorsfavor Illinois or an appropriate forum in another state.

The Illinois Supreme Court recently reaffirmed the doctrine of forum non conveniensin First American Bank v. Guerine, 198 Ill. 2d 511, 764 N.E.2d 54 (2002). In Guerine, thesupreme court reiterated the long-standing proposition that the plaintiff's choice of forumis accorded great weight and should not be disturbed unless other factors strongly favor atransfer. Guerine, 198 Ill. 2d at 517, 764 N.E.2d at 58-59. The supreme court remindedlitigants that it is the defendant's burden to show that "the plaintiff's chosen forum isinconvenient to the defendant and another forum is more convenient to all parties". Guerine,198 Ill. 2d at 518, 764 N.E.2d at 59. The supreme court also instructed trial courts toevaluate the total circumstances in order to determine whether a defendant has proven thatthe balance of factors strongly favors a transfer or a dismissal of the action. Guerine, 198Ill. 2d at 517-18, 764 N.E.2d at 59.

In Guerine, the supreme court strongly recommended that trial courts "give morecareful consideration to forum non conveniens motions" and "leave a better record of theiranalyses" so that reviewing courts can make more informed decisions. Guerine, 198 Ill. 2dat 520-21, 764 N.E.2d at 60-61. We recently noted that this recommendation contained animplicit directive to the parties to provide the trial court with a record of the relevant factors,"supported by facts and evidence, as opposed to supposition and conjecture" (emphasisadded), in support of or in opposition to the forum motion. Gridley v. State Farm MutualAutomobile Insurance Co., 329 Ill. App. 3d 422, 425, 767 N.E.2d 896, 900 (2002).

The record shows that the accident occurred in Mayview, Lafayette County, Missouri,that the decedent resided in Lafayette County, Missouri, and that his family still residesthere. The record also shows that defendant is an Illinois corporation with its corporateheadquarters in Fairview Heights, St. Clair County, Illinois, and that the majority of thewitnesses and sources of proof are located in or near Lafayette County, Missouri.

In its motion, defendant indicated that the Missouri State Highway Patrol officerswho conducted the investigation and performed the accident reconstruction are assigned towork within 50 miles of the courthouse in Lexington, Missouri; that all three crew memberswho were aboard defendant's train at the time of accident are Missouri residents and residewithin 50 miles of the Lexington courthouse; that the emergency personnel who evaluatedMr. Skidmore at the scene work within 14 miles of the Lexington courthouse; and that oneof the postoccurrence witnesses lives within 12 miles of the Lexington courthouse, whilethe other lives in Kansas City, Kansas. Defendant also indicated that the Missouri circuitcourt in Lexington, Lafayette County, Missouri, is 12 miles from the accident site, while thecourthouse in St. Clair County, Illinois, is approximately 227 miles from the accident site. Plaintiff has not contested these assertions.

This is not a case where the majority of the potential trial witnesses are scatteredthroughout various counties in Missouri and Illinois. According to the record, the majorityof these witnesses would have to travel approximately 200 miles to appear in court in St.Clair County, Illinois. While traveling 200 miles is not oppressive, it is certainly lessconvenient than traveling less than 50 miles. We recognize that courts in some jurisdictions,as a matter of practice, have applied a bright-line rule and will not dismiss a case oninterstate forum non conveniens grounds if that case arose within a specified distance of thecourthouse. See, e.g., Final Report of Missouri Bar Commission on Forum Non Conveniens(Dean Burnele V. Powell, chairman, 1999), summarized in MO. B. Bull., November 1999,at 4-5. Though the Illinois Supreme Court has acknowledged that the world has been madesmaller because of advances in technological and transit systems and that the meaning of"convenience" to parties and witnesses has changed due to these advances (Guerine, 198 Ill.2d at 526, 764 N.E.2d at 63), it has not, to date, established a bright-line rule for interstateforum non conveniens cases.

The majority of the witnesses are Missouri residents who are subject to compulsoryprocess in Missouri, but not in Illinois. The cause of death does not appear to be in disputein this case, but the facts surrounding the accident are likely to be fiercely contested. Consequently, the testimony of the crew members and the troopers who investigated thescene and reconstructed the accident will be significant, and they are beyond the subpoenapower of the court in Illinois. Compelling members of defendant's crew causes little concernbecause crew members are unlikely to decline defendant's request to appear and becauseplaintiff can compel their appearances pursuant to a Supreme Court Rule 237(b) notice (166Ill. 2d R. 237(b)). The highway patrol officers pose a different problem. Some lawenforcement agencies require that their officers be subpoenaed to appear for a deposition ora trial. The record does not indicate whether the Missouri State Highway Patrol has sucha requirement. Nevertheless, the Missouri Rules of Civil Procedure provide for the issuanceby a Missouri circuit court of subpoenas to compel Missouri residents to appear for adeposition for use in a sister state's legal proceeding. MO. Rs. Civ. P. R. 57.08 (2002). Illinois has a similar rule. 166 Ill. 2d R. 204(b). Although live testimony is often preferred,advances in technology have made sophisticated video-deposition presentations anacceptable, though admittedly not equal, alternative.

According to the record, defendant is an Illinois corporation and its principal placeof business (corporate headquarters) is located in Fairview Heights, St. Clair County,Illinois. Defendant adamantly contends that the presence of its headquarters in St. ClairCounty does not establish a sufficient basis to deny the dismissal of the case on interstateforum non conveniens grounds. In support of its contention, defendant relies upon apublished decision, Moore v. Chicago & North Western Transportation Co., 99 Ill. 2d 73,457 N.E.2d 417 (1983). Defendant also relies on two cases in which the Illinois SupremeCourt entered supervisory orders directing that actions filed against it in St. Clair County bedismissed on forum non conveniens grounds. In addition, defendant cites two cases inwhich the St. Clair County circuit court entered orders dismissing actions against it on forumnon conveniens grounds.

Initially, we note that supervisory orders and circuit court decisions are notprecedential for this court and provide no support for defendant's position. See Guerine,198 Ill. 2d at 511, 764 N.E.2d at 60 (noting that the resources of the court have been spentmicromanaging errant forum rulings with nonprecedential supervisory orders, including thetwo cited by defendant in the case at bar, rather than deciding fully developed controversies).Supervisory orders are not precedential because they "are unpublished, recite no facts, andprovide no rationale upon which the principles of stare decisis may attach." People v.Jackson, 154 Ill. App. 3d 320, 324, 507 N.E.2d 89, 91 (1987).

In Moore, the Illinois Supreme Court accorded no significance to the fact that thedefendant's principal place of business was in the plaintiff's chosen forum. Moore, 99 Ill.2d at 79, 457 N.E.2d at 426. In the opinion, the supreme court noted that the only factorconnecting the defendant with Illinois and the litigation was the fact that the defendant'sprincipal place of business was in Cook County. In the very next sentence of the opinion,the supreme court said, "The fact that a railroad does business in Illinois has been held notto be controlling in disposing of a motion to dismiss on the basis of forum non conveniensbecause it is 'assum[ed] that both courts can obtain jurisdiction over the defendant.' " Moore, 99 Ill. 2d at 79, 457 N.E.2d at 426 (quoting Adkins v. Chicago, Rock Island &Pacific R.R. Co., 54 Ill. 2d 511, 301 N.E.2d 729 (1973), and citing Wieser, 98 Ill. 2d at 372,456 N.E.2d at 104). A review of the supreme court's decisions in Adkins and Wieser isenlightening. In Adkins, a majority of the supreme court held that the fact that the defendantrailroad was doing business in Illinois was not significant to the determination of a motionto dismiss on forum non conveniens grounds, because the motion assumed that there wasanother available forum with jurisdiction over the defendant. Adkins, 54 Ill. 2d at 515, 301N.E.2d at 731. However, according to the dissenting opinion, the defendant railroad wasnot merely doing business in Illinois, but its principal offices were located in Chicago andtwo of its executives, who were named as individual defendants, were Illinois residentsstationed in Chicago and were knowledgeable about some aspects of the liability issue. Adkins, 54 Ill. 2d at 515, 301 N.E.2d at 731. The significance of blurring the distinctionbetween "doing business" and "principal place of business" becomes readily apparent whenWieser and other forum non conveniens decisions are considered.

In Wieser, the Illinois Supreme Court determined that Illinois would have aconnection with the litigation and an interest in providing a forum to resolve the controversyif the principal place of business of the defendant was located here. "If Illinois had anyconnection with the litigation such as the residence of the plaintiff, or the principal placeof business of the defendant, or the situs of the accident, or of the decedent's employment,it would have had an interest in providing a forum in which to resolve the dispute." (Emphasis added.) Wieser, 98 Ill. 2d at 371-72, 456 N.E.2d at 104. Thus Wieser, cited inMoore as support for the proposition that the situs of the defendant's principal place ofbusiness is of little importance in the forum non conveniens analysis, states the exactopposite. In Wieser, the supreme court clearly drew a distinction between merely "doingbusiness" in the selected forum and having a "principal place of business" in the selectedforum, for the purpose of evaluating the plaintiff's choice of forum. Wieser, 98 Ill. 2d at372, 456 N.E.2d at 104. The Wieser case, decided October 21, 1983, emphasizes theimportance of the defendant's principal place of business in the forum non conveniensanalysis. In contrast, the Moore case, decided December 1, 1983 (only 41 days later), seemsto discount the defendant's principal place of business, considering it no more significantthan "doing business" in the forum analysis.

The Illinois Supreme Court recently acknowledged that the Illinois forum nonconveniens law is less than clear. Guerine, 198 Ill. 2d at 526, 764 N.E.2d at 64. Afterreviewing these authorities, we conclude that the Moore and Adkins decisions areirreconcilable with the Wieser decision. We believe that Wieser's listing of the residence ofthe plaintiff, the principal place of business of the defendant, the situs of the accident, andthe location of the plaintiff's place of employment as important factors must be accordedgreat weight in our analysis. We reach this conclusion from a review of the supreme court'sdecisions in later cases where the presence of one of these four factors was decisive.

Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 490 N.E.2d 694 (1986), establishedthe primacy of the place of the occurrence in the forum non conveniens equation. Relyingon Wieser, the Brummett decision held, "The fact that the plaintiff here was injured inMadison County gives this case a significant factual connection with the forum plaintiff haschosen." 111 Ill. 2d at 501, 490 N.E.2d at 698. The case had no connection with MadisonCounty other than as the situs of the accident. Yet the supreme court stated that because theplaintiff filed her case at the place of injury, the case had the aspect "of a localizedcontroversy with a local interest in having the controversy 'decided at home.' " Brummett,111 Ill. 2d at 500, 490 N.E.2d at 697 (quoting Gilbert, 330 U.S. at 509, 91 L. Ed. at 1063,67 S. Ct. at 843).

Similarly, in McClain v. Illinois Central Gulf R.R. Co., 121 Ill. 2d 278, 520 N.E.2d368 (1988), the court was confronted with a factual situation where the plaintiff was not anIllinois resident at the time of the injury but later moved to Illinois after the suit was filed. Relying on Wieser and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 70 L. Ed. 2d 419,435-36, 102 S. Ct. 252, 265-66 (1981), the court stated:

"If the chosen forum is the plaintiff's home, a court may reasonably assume that thechoice is convenient (see Piper Aircraft [Co.], 454 U.S. at 255-56, 70 L. Ed. 2d at436, 102 S. Ct. at 266); both private and public interests tend to weigh in theplaintiff's favor when he chooses to sue at home." McClain, 121 Ill. 2d at 290, 520N.E.2d at 373.

The court went on to hold that if a nonresident plaintiff chooses to move to Illinois after thesuit is filed, the choice of forum does not deserve the same deference.

If the forum is convenient when the plaintiff chooses his or her home forum to filesuit, how can the forum be any less convenient when the plaintiff chooses the defendant'shome forum (principal place of business) to file suit? Should a defendant be heard toseriously argue that the county it chose to make its home is an unreasonable place to defenditself? Kwasniewski v. Schaid, 153 Ill. 2d 550, 607 N.E.2d 214 (1992), held that the answerwas NO! In that case a fatal accident occurred in Wisconsin. The plaintiff was a CookCounty resident. Both the individual defendant and the corporate defendant were residentsof McHenry County, Illinois. The suit was filed in McHenry County. Kwasniewski, 153 Ill.2d at 551-52, 601 N.E.2d at 215. The supreme court said: "Most significantly, the suit wasbrought in defendants' home county. It is all but incongruous for defendants to argue thattheir own home county is inconvenient." Kwasniewski, 153 Ill. 2d at 555, 607 N.E.2d at217. In regard to corporations, the principal place of business is the nerve center of thebusiness. It was specifically selected by the corporation as the place to centralize itsactivities. It is "home".

We conclude that the supreme court has scrupulously followed its own road map laidout in Wieser. Each time one of the four facts listed in Wieser has been present, that fact has "trumped" the other facts in the case. We recognize that the supreme court hasrepeatedly stated that no single fact or factor should control. This was reiterated mostrecently in Guerine. 198 Ill. 2d at 518, 764 N.E.2d at 60. Nevertheless, that is exactly whathappened when the plaintiff sued at the situs of the accident (Brummett) or in the county ofhis residence (McClain) or in the home county of the individual and corporate defendants(Kwasniewski). Moreover, "[t]he defendant cannot assert that the plaintiff's chosen forumis inconvenient to the plaintiff." Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59.

Why is it that these factors trump? Wieser answered this question when it said thatwhen one or more of these factors are present, the connection with the chosen forum is sostrong that Illinois has an interest in providing a forum in which to resolve the dispute. Wieser, 98 Ill. 2d at 372, 456 N.E.2d at 104. In other words, if one or more of these factorsare present, the court has a strong interest in retaining jurisdiction.

The citizens of Illinois certainly have an interest in this case because the incidentinvolves one of its corporate citizens whose headquarters is located in St. Clair County,Illinois. The citizens of Missouri also have an interest in the case because the accidentoccurred at a railroad crossing in Missouri and the decedent was a Missouri resident. In ourview, the citizens of each state have an interest in the litigation, and none would be unfairlyburdened if they were required to serve as jurors.

We have considered the trial court's decision under the weight of the aforementionedIllinois Supreme Court decisions. Based upon the record and those authorities, we cannotsay that the trial court abused its discretion in denying the motion to dismiss on the groundsof interstate forum non conveniens. For the reasons stated herein, the order of the circuitcourt is affirmed.

Affirmed.

HOPKINS and KUEHN, JJ., concur.

NO. 5-01-0710

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


EDITH SKIDMORE, Special Administrator of the ) Appeal from the
Estate of Clifford Skidmore, Deceased, ) Circuit Court of
) St. Clair County.
              Plaintiff-Appellee, )
)
v. ) No. 00-L-557
)
GATEWAY WESTERN RAILWAY COMPANY, ) Honorable
) Stephen M. Kernan,
             Defendant-Appellant. ) Judge, presiding.

Opinion Filed: September 9, 2002


Justices: Honorable Gordon E. Maag, P.J.

Honorable Terrence J. Hopkins, J., and

Honorable Clyde L. Kuehn, J.,

Concur


Attorneys Paul M. Brown, Anthony L. Franks, Thompson Coburn LLP, One U.S. Bank Plaza,

for St. Louis, MO 63101-1693

Appellant


Attorney Kevin T. Hoerner, Becker, Paulson & Hoerner, P.C., 5111 West Main Street,

for Belleville, IL 62226

Appellee