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Huck v. Northern Ind. Public Service Co.

OPINION FILED SEPTEMBER 6, 1983.

IDA HUCK, SPECIAL ADM'R OF THE ESTATE OF LAWRENCE HUCK, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

NORTHERN INDIANA PUBLIC SERVICE COMPANY ET AL., DEFENDANTS — (NORTHERN INDIANA PUBLIC SERVICE COMPANY, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Myron Gomberg, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiffs Ida Huck and Johnny K. Hopkins sued for damages arising from the death of Lawrence Huck and from injuries sustained by Johnny K. Hopkins. The death and injuries occurred when an antenna being installed by Huck and Hopkins came into contact with power lines through which electrical current produced by defendant Northern Indiana Public Service Company (NIPSCO) was flowing. Plaintiffs sued NIPSCO and the manufacturer of the antenna. Defendant NIPSCO filed a motion to quash service of summons for lack of personal jurisdiction. The trial court granted defendant's motion and plaintiffs appeal.

On May 2, 1981, John K. Hopkins and Lawrence Huck were attempting to install a C.B. antenna on the roof of Huck's home in Winamac, Indiana. Huck was killed and Hopkins was injured when the antenna came into contact with power lines owned by the City of Winamac through which electrical current produced by defendant Northern Indiana Public Service Company was flowing. Plaintiffs brought suit in Illinois against NIPSCO and other defendants. NIPSCO filed a special and limited appearance and a motion to quash service of summons, claiming that the circuit court of Cook County had no personal jurisdiction over it because NIPSCO does not do business in Illinois. NIPSCO supported its motion with the affidavit of Mr. Horace Lyle, its vice-president for electrical production. By agreement of the parties, Mr. Lyle's deposition, which was taken in the case of Bethlehem Steel Corp. v. Northern Indiana Public Service Co. (N.D. Ill., Sept. 20, 1982), No. 82 C 118, was used concerning plaintiffs' response to defendant's motion to quash.

Plaintiffs base their contention that defendant is doing business in Illinois on several alleged "contacts" with this State. The following are the contacts relied upon by plaintiffs to satisfy the jurisdictional "doing business" requirement:

(1) Defendant buys and sells electrical power to Commonwealth Edison Co., an Illinois corporation, through a contract with that company and Commonwealth Edison Co. of Indiana, Inc., an unrelated Indiana corporation;

(2) Defendant buys 40-50% of its coal from Illinois coal fields and transports this coal to Indiana by seven unit coal trains, three of which are leased from an Illinois company and serviced and maintained in Illinois;

(3) Defendant uses two Chicago banks, 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 defendant and located in Indiana, as trustees of defendant's pension fund and as stock transfer agents;

(4) Defendant owns natural gas pipelines in Indiana which connect with interstate pipelines running between Illinois and Indiana and owned by entities independent of defendant, through which defendant receives gas from storage fields located in Illinois; and

(5) Defendant uses Illinois television and radio stations for advertising purposes.

The trial court granted defendant's motion to quash, and plaintiffs appeal.

• 1 Plaintiffs contend that defendant's activities within Illinois are sufficient to constitute doing business, thus subjecting defendant to the personal jurisdiction of the Illinois courts> under sections 2-204 and 2-208 of the Code of Civil Procedure. Ill. Rev. Stat. 1981, ch. 110, pars. 2-204, 2-208.

A finding that a corporation is doing business in Illinois generally requires that the corporation conduct business in Illinois "of such a character and extent as to warrant the inference that it has subjected itself to the jurisdiction and laws of Illinois." Maunder v. DeHavilland Aircraft of Canada, Ltd. (1983), 112 Ill. App.3d 879, 882, 445 N.E.2d 1303.

The standards to be used in applying the doing business doctrine were set forth by the Illinois Supreme Court in Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill.2d 190, 429 N.E.2d 847. In Cook, the court stated that the doing business test was not to be equated with the mere satisfaction of the minimum contacts requirement under the due process clause of the fourteenth amendment to the United States Constitution. (87 Ill.2d 190, 200-201; see Green v. Advance Ross Electronics Corp. (1981), 86 Ill.2d 431, 436, 427 N.E.2d 1203.) The court so ruled in order to maintain the distinction between the long-arm statute and the doing business standard and to avoid tying these rules to the ever-changing due process standards. 87 Ill.2d 190, 201.

The court premised its examination of the defendant's activities under the doing business test as applied in Illinois with the statement that "[t]here is no all-inclusive test for determining whether a foreign corporation is doing business in this State." (87 Ill.2d 190, 201.) Although there may be no such all-inclusive test, almost all Illinois cases determining the existence of personal jurisdiction over foreign corporations have based their findings upon the existence of factors such as offices or sales activities in Illinois. See, e.g., Braband v. Beech Aircraft Corp. (1978), 72 Ill.2d 548, 382 N.E.2d 252, cert. denied (1979), 442 U.S. 928, 61 L.Ed.2d 296, 99 S.Ct. 2857; St. Louis-San Francisco Ry. Co. v. Gitchoff (1977), 68 Ill.2d 38, 369 N.E.2d 52; Hertz Corp. v. Taylor (1959), 15 ...


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