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Sears, Roebuck & Co. v. Continental Ins. Co.

DECEMBER 8, 1972.

SEARS, ROEBUCK & COMPANY, PLAINTIFF-APPELLANT,

v.

CONTINENTAL INSURANCE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWIN F. HEALY, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

The sole issue raised by this appeal is whether the trial court abused its discretion in dismissing this action for a declaratory judgment on the ground of forum non conveniens.

The plaintiff in this action, Sears Roebuck & Company, was sued in the district court for Polk County, Iowa, by Orville Lee Hill, administrator of the estates of Thelma Louise Hill and Connie Christine Hill. The two women were fatally injured due to the explosion of a water heater allegedly containing a defective valve. Also named as defendants in the Iowa actions were State Stove Manufacturing Company, the manufacturer of the heater, and White-Rodgers Company, the manufacturer of the valve. Sears purchased the valve from White-Rodgers and sold the heater at the retail level.

The defendant in the instant action is Continental Insurance Company. Sears' complaint alleged that Continental issued a products liability insurance policy to White-Rodgers; that the policy contains a provision requiring Continental to defend any action against White-Rodgers, even if groundless, if brought on account of an accident covered by the terms of the policy; that the policy contains a "Vendor's Endorsement" in favor of Sears; that Continental's obligation to defend Sears is co-extensive with its obligation to defend White-Rodgers; and that Sears tendered the defense of the Iowa lawsuits to Continental but it refused to defend Sears on the ground that the policy excluded coverage for liability arising from the negligence of Sears. The prayer for relief requested the court to construe the insurance contract as requiring Continental to defend Sears in the Iowa actions and reimburse Sears for expenditures already made in defense therof.

Sears and Continental are both incorporated in New York. Sears' principal place of business is in Chicago and Continental conducts business in the State of Illinois.

Continental moved to dismiss the complaint. Its motion stated that the insurance contract with White-Rodgers was issued and delivered to the insured at its principal place of business in St. Louis, Missouri; that the water heater was manufactured in Missouri; that the underlying cause of action (the explosion of the water heater) arose in Des Moines, Iowa; that the interpretation of the insurance contract and thus Continental's obligation to defend Sears, if any, would be determined by the law of Iowa or Missouri; that Illinois has no connection with the transactions except that it is Sears' "domicile."

Continental submitted two affidavits in support of its motion; they supported the statements set forth in the motion and added that the allegedly defective valve was manufactured and assembled at White-Rodgers' plant in Batesville, Arkansas.

Based on these facts the court dismissed the action on the ground of forum non conveniens.

Opinion

• 1, 2 The doctrine of forum non conveniens is that a court in its discretion may decline to exercise jurisdiction over an action despite the fact that it "may have proper jurisdiction over all parties and the subject matter involved." (Whitney v. Madden, 400 Ill. 185, 189, 79 N.E.2d 593.) Appellate review is afforded to determine whether the court abused its discretion. Whitney at 190; Continental Casualty Co. v. Hartford Accident & Indemnity Co., 28 Ill. App.2d 177, 171 N.E.2d 68.

• 3, 4 Numerous factors have been cited as relevant to determining whether to exercise the doctrine. They include factors relating to the "practical problems that make trial of a case easy, expeditious and inexpensive" such as the relative ease of access to sources of proof, availability of compulsory process to procure attendance of unwilling witnesses, the cost of obtaining attendance of willing witnesses and "the possibility of a view." Also relevant is the enforceability of a judgment in a foreign jurisdiction if one is obtained in the forum court. Pertinent factors of public interest are the congestion of litigation in the forum court, the interest in having local controversies decided at home and the advantage of having a court familiar with the law to be applied, apply that law. (Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 509; see Whitney at 189, (as narrowed by People ex rel. C. & O. Ry. Co. v. Donovan, 30 Ill.2d 178, 180, 195 N.E.2d 634).) But it was stated in Gulf Oil at 508 that "unless the balance [of factors relating to the inconvenience of trying the case in the forum court] is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."

• 5 Defendant's motion to dismiss and its accompanying affidavits essentially state that Illinois has no connection with the transactions except that plaintiff's principal place of business is in Chicago and the defendant conducts business in Illinois, and that if the court exercises jurisdiction over the matter, it will be called upon to interpret the law of Iowa or Missouri. We believe that the foregoing factors are insufficient to invoke the doctrine relied on and therefore the trial court abused its discretion in dismissing the action.

Defendant has cited Whitney v. Madden; Cady v. Hartford Fire Insurance Co., 56 Ill. App.2d 429, 206 N.E.2d 535; and Fender v. St. Louis Southwestern Ry. Co., 49 Ill.2d 1, 273 N.E.2d 353, rev'g 125 Ill. App.2d 211, 260 N.E.2d 373.

In Whitney it was held that the trial court properly dismissed a libel suit where both parties were residents of other States, the libelous act occurred outside of Illinois, the defendant had no property and conducted no business in Illinois and would be placed ...


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