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Devries v. Bankers Life Co.

OPINION FILED NOVEMBER 9, 1984.

GEORGE DEVRIES ET AL., GUARDIANS OF RENEE DEVRIES, PLAINTIFFS-APPELLEES,

v.

BANKERS LIFE COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Philip A. Fleischman, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This appeal was brought by defendant under Supreme Court Rule 306 (87 Ill.2d R. 306) from an order denying its motion to dismiss plaintiffs' action on grounds of forum non conveniens.

It appears that on May 11, 1981, Renee DeVries (Renee), then a resident of Iowa and a speech therapist for the Iowa public school system, swallowed 78 tablets of Asendin, an antidepressant prescribed for her by an Iowa psychiatrist. Her boyfriend took her to the University of Iowa Hospital in Iowa City, Iowa, where she remained until she was transferred to Madison General Hospital in Madison, Wisconsin, on May 29, 1981. She is currently a resident of DePere, Wisconsin, and because of her disabled condition, plaintiffs (her parents), residing in Waupun, Wisconsin, were appointed her guardians by the circuit court of Fond Du Lac County, Wisconsin.

As an Iowa public school employee, Renee was covered by a group long-term disability policy underwritten by defendant and issued to the Iowa Association of School Boards Public School Trust as policyholder. After she was denied disability benefits by defendant on the basis of a provision in its policy excluding coverage for intentionally self-inflicted injuries, plaintiffs brought this action on behalf of Renee seeking a declaration of her rights under the policy and for the benefits it provided. Defendant moved to dismiss, asserting that Illinois is a forum non conveniens. The trial court denied the motion after a hearing, and we granted defendant's petition for leave to appeal under Rule 306.

OPINION

• 1 We first address plaintiffs' argument that defendant, by failing to include a report of proceedings in its record on appeal, waived any error in the denial of its motion to dismiss. Supreme Court Rule 306 provides that the record on appeal "shall consist of whatever is necessary to present the questions for review" (87 Ill.2d R. 306(b)), and while ordinarily it is necessary only to determine whether the record here contains sufficient information to present the forum non conveniens issue for review, plaintiffs argue that a transcript is absolutely necessary to review a trial court order for abuse of discretion. The cases they cited in their brief here, however, do not support this argument. Rather, they establish that the absence of a transcript, or a suitable substitute pursuant to Supreme Court Rule 323 (87 Ill.2d R. 323), precludes review of only those issues whose merits depend on the omitted matters, such as questions concerning the sufficiency of the evidence (Chicago City Bank & Trust Co. v. Wilson (1980), 86 Ill. App.3d 452, 407 N.E.2d 964) or issues relating to the actual conduct of a hearing (Nenadic v. Grant Hospital (1979), 75 Ill. App.3d 614, 394 N.E.2d 527). Another case cited by plaintiffs, Woodfield Ford, Inc. v. Akins Ford Corp. (1979), 77 Ill. App.3d 343, 395 N.E.2d 1131, is more supportive of defendant's position. There, this court held that the record was sufficient for review of the jurisdictional issue involved since all of the determinative facts were contained in the complaint and in an affidavit, both of which were included in the record.

During oral argument here, plaintiffs cited the additional case of Foutch v. O'Bryant (1984), 99 Ill.2d 389, 459 N.E.2d 958, which we also find to be nonsupportive. In Foutch, the finding that the trial court did not abuse its discretion in the denial of a motion to vacate was based not only on the fact that there was no transcript of the hearing, but also because it was otherwise impossible to determine the reason for the trial court's ruling where its order did not state grounds for the denial and no memoranda were filed by the parties. Here, memoranda and affidavits of the parties are in the record on appeal, and the trial court's order stated that the denial was based "upon the representation by plaintiffs' attorney that it is his intention to call Illinois expert witnesses to present its case."

• 2 In the case before us, all of the relevant facts are included in the record presented. Both parties have asserted in their briefs here only those facts contained in the complaint, memoranda, and affidavits filed in the trial court, and it is thus not necessary to resort to specific arguments advanced by counsel at the hearing on the motion. (See Venturini v. Affatato (1980), 84 Ill. App.3d 547, 405 N.E.2d 1093.) We therefore believe the record is sufficient for review of the forum non conveniens issue.

• 3 We turn, then, to defendant's contention that the trial court abused its discretion in denying the motion to dismiss. Although broad discretion is vested in the trial court to determine whether dismissal on grounds of forum non conveniens is warranted, its decision will be reversed on appeal if its discretion was abused. Moore v. Chicago & North Western Transportation Co. (1983), 99 Ill.2d 73, 457 N.E.2d 417.

• 4 We initially note that defendant's status as an insurance company doing business in Illinois is not controlling for purposes of a forum non conveniens analysis, since the doctrine assumes that more than one forum can obtain jurisdiction over a defendant. *fn1 (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 301 N.E.2d 729, cert. denied (1976), 424 U.S. 943, 47 L.Ed.2d 349, 96 S.Ct. 1411.) Here, defendant's activities in Illinois simply provide a basis for jurisdiction, and have no other connection with this litigation.

• 5, 6 Because "[f]orum non conveniens is a doctrine that is founded in considerations of fundamental fairness and sensible and effective judicial administration" (Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill.2d 511, 514, 301 N.E.2d 729, 730), the proper inquiry analyzes the relative convenience of the fora, and in this regard, certain factors — involving the public interest as well as the private interests of the litigants — must be balanced by the trial court in ruling on a forum non conveniens motion (Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L.Ed. 1055, 67 S.Ct. 839). Although plaintiffs correctly argue that a plaintiff's choice of forum is generally accorded great weight and will not be disturbed unless the balance of factors strongly favors the defendant, a plaintiff's choice is entitled to less deference when, as here, plaintiff chooses a foreign forum. Piper Aircraft Co. v. Reyno (1981), 454 U.S. 235, 70 L.Ed.2d 419, 102 S.Ct. 252; Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App.3d 80, 463 N.E.2d 792.

• 7 It is in the light of those standards that we must determine whether the trial court here abused its discretion in balancing the relevant factors which, with respect to the private interests of the litigants, have been stated as follows:

"`Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained.'" Jones v. Searle Laboratories (1982), 93 Ill.2d 366, 372, 444 N.E.2d 157, 160, quoting Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L.Ed. 1055, 1062, 67 S.Ct. 839, 843.

• 8 The first factor in the private-interest analysis, as stated in Jones, is the relative ease of access to sources of proof. Since it is the contention of plaintiffs here that Renee's disability was not self-inflicted but was caused by negligence in her hospital emergency room care, it appears that documentary evidence necessary to sustain or negate her position is located in Iowa. *fn2 Her medical records are at the University of Iowa Hospital, in Iowa City, the records of her psychiatrist are in Cedar Rapids, Iowa, and the documents of defendant concerning her disability claim are located in its Des Moines, ...


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