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Stephens v. Northern Indiana Public Service Co.

OPINION FILED AUGUST 21, 1980.

LARRY STEPHENS, PLAINTIFF-APPELLEE,

v.

NORTHERN INDIANA PUBLIC SERVICE CO., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. WILLIAM E. JOHNSON, Judge, presiding.

MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:

This is an interlocutory appeal from an order of the Circuit Court of Madison County overruling the objection that it had no in personam jurisdiction over defendant-appellant Northern Indiana Public Service Company (NIPSCO).

Plaintiff-appellee Larry Stephens, an employee of Babcock and Wilcox Construction Company, was injured on March 26, 1974, while working on a construction project at defendant's Bailly Generating Station in Porter County, Indiana. He filed suit against NIPSCO in Madison County, Illinois, alleging that the Indiana corporation was doing business in the State of Illinois and was liable to him for its failure to provide him with a safe place to work.

After being served with process in LaPorte County, Indiana, on July 2, 1975, NIPSCO entered a special appearance, supported by affidavits of certain of its officers, objecting to the jurisdiction of the court over its person. (Ill. Rev. Stat. 1973, ch. 110, par. 20.) According to the supporting affidavits, the defendant is an Indiana public utility corporation engaged in the business of supplying electricity and natural gas, on an intrastate basis only, in the northern part of Indiana, as authorized by the Public Service Commission of Indiana. It provides no utility service in Illinois, maintains no office in Illinois, has no regulatory authority from the Illinois Commerce Commission, is not licensed to do business in Illinois, and does no business in Illinois. The Bailly Generating Station generates electricity which is sold by NIPSCO to customers located within the State of Indiana, and its physical plant is located entirely within the State of Indiana. The affidavits further set forth the extent of NIPSCO's contacts with Illinois.

After the court below denied the jurisdictional objection, it entered a written statement pursuant to Supreme Court Rule 308(a) that its interlocutory order raised a question of law as to which there was substantial grounds for difference of opinion and that an immediate appeal from the order might materially advance the ultimate termination of the litigation. (Ill. Rev. Stat. 1977, ch. 110A, par. 308(a).) The question of law identified by the trial court and presented to us on the appeal is as follows:

"Does the Madison County, Illinois, Circuit Court have jurisdiction over the person of an Indiana corporation, doing business as an intrastate Indiana public utility, served with summons in Indiana in a suit brought by a person for personal injuries arising out of an accident which occurred during a construction project at the utility's Bailly Generating Station in Porter County, Indiana — the only contacts of the utility in Illinois being: (1) the utilization of banks in Chicago, Illinois, which are independent of the utility, through contractual arrangements, as depositories, disbursing agents for some of the utility's funds, as trustees under a mortgage on certain real estate owned by the utility and located in Indiana, as trustees of the utility's pension fund, and as stock transfer agents; (2) the utility's being party to an interconnection agreement between it and a second, unrelated Indiana corporation, pursuant to which agreement electrical power which is generated in Illinois may be purchased by the utility from said second Indiana corporation and electrical power generated by the utility may be sold to said second Indiana corporation which may transmit the power into Illinois; (3) ownership of natural gas pipelines located in Indiana which connect with interstate natural gas pipelines running between Illinois and Indiana and owned by entities independent of said utility?"

We granted the defendant's timely application for leave to appeal and now reverse.

No findings were made by the trial court to indicate the legal premise upon which it based jurisdiction. Plaintiff primarily contends that defendant was doing business on a substantial and continuous basis in Illinois and therefore was "sufficiently present" in Illinois to be served as other resident corporations under sections 13.3 and 16 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, pars. 13.3 and 16). He also asserts jurisdiction is established by section 17, but does not specify whether he is relying on section 17(1)(a) (the transaction of any business within this State) or section 17(1)(b) (the commission of a tortious act within this State). The relevant statutes in pertinent part provide:

"§ 13.3. Service on private corporations.

A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law. A private corporation may also be notified by publication and mail in like manner and with like effect as individuals." Ill. Rev. Stat. 1971, ch. 110, par. 13.3.

"§ 16. Personal service outside State.

(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts> of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication." Ill. Rev. Stat. 1971, ch. 110, par. 16(1).

"§ 17. Act submitting to jurisdiction — Process.

(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts> of this State ...


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