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02/11/88 Jay Wilford Mcclain Et Al. v. Central Gulf Railroad

February 11, 1988

JAY WILFORD MCCLAIN ET AL., APPELLEES

v.

ILLINOIS CENTRAL GULF RAILROAD COMPANY, APPELLANT



SUPREME COURT OF ILLINOIS

520 N.E.2d 368, 121 Ill. 2d 278, 117 Ill. Dec. 207 1988.IL.184

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. P. J. O'Neill, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

Jay Wilford McClain was seriously injured on April 11, 1982, when the truck he was driving overturned after crossing the railroad tracks of the defendant, the Illinois Central Gulf Railroad Company , in Memphis, Shelby County, Tennessee. On August 6, 1982, McClain and his wife, Crystal, filed the instant action against ICG in the circuit court of Madison County. The complaint was in three counts; in counts I and II, Mr. McClain sought recovery for his personal injuries under common

law theories of negligence and willful and wanton misconduct, and in count III, sounding in negligence, Mrs. McClain sought recovery for loss of consortium. ICG made a number of unsuccessful motions for dismissal of the action on grounds of forum non conveniens. The appellate court denied ICG's petition for leave to appeal from the denial of its latest forum non conveniens motion (107 Ill. 2d R. 306(a)(1)(ii)), and we allowed ICG's petition for leave to appeal to this court (107 Ill. 2d R. 315(a)).

Following the commencement of the plaintiffs' action in August 1982, summons was issued on March 28, 1983, and ICG was served on March 31, 1983. On May 2, 1983, the railroad moved to dismiss the action on grounds of forum non conveniens. In its motion, ICG contended that the cause of action arose in Tennessee, that the plaintiffs were residents of Tennessee and that all the occurrence and medical witnesses were from the Memphis area, that all the physical evidence was in Tennessee, that the defendant was amenable to process in Memphis, and that there were no witnesses or other evidence in Illinois. In addition, ICG noted the congested docket in the circuit court of Madison County, the distance between Memphis and Madison County, and the costs of transporting witnesses from Memphis to Madison County.

In opposition to the railroad's motion, the plaintiffs responded that McClain had been under the care of Dr. James Segrist of Alton, Madison County, Illinois, since October 1982, and that he had also been receiving treatment in St. Louis for the injuries resulting from the accident. McClain also asserted that he had moved to Granite City, which is located in Madison County, in January 1983, after the present action was filed, and that he was registered to vote in this State and held an Illinois driver's license. The plaintiffs further alleged that ICG did a large amount of business in the St. Louis metropolitan area and that its principal place of business was in Illinois. The trial court denied ICG's motion on June 3, 1983.

On June 30, 1983, ICG moved for reconsideration of the denial of its initial motion. In its new motion, ICG added the allegations that the law of Tennessee would govern the case, that ICG intended to file a third-party complaint for express contractual indemnity against McClain's employer, Distribution and Transportation Services, Inc. , and that the employer would not be amenable to process in Illinois. McClain was driving a truck for DTS at the time of his accident, and it occurred on a private road owned by the defendant that DTS was allowed to use under the terms of a license agreement.

In response to the motion for reconsideration, the plaintiffs contended that the additional matters could have been raised in the original motion, that ICG's allegations concerning the possible third-party complaint were unsupported, and that ICG remained free to sue DTS in another jurisdiction. ICG's motion for reconsideration was denied on July 22, 1983.

On November 13, 1984, ICG filed a third motion to dismiss on grounds of forum non conveniens. The only additional matter presented in the motion was the allegation that ICG had filed a third-party complaint in Madison County against the plaintiff's employer, DTS. In response to the motion, the plaintiffs contended that there was still no support for the statement that DTS would not be amenable to process in Illinois. An affidavit submitted by the plaintiff also asserted that he had moved to Granite City in March 1984 -- some 14 months later than he had previously indicated. On February 12, 1985, the trial Judge denied ICG's latest forum non conveniens motion. In a written order, the trial Judge found that the railroad had not presented any new facts or allegations, that it was not yet clear whether McClain's employer could be sued in Madison County, and that nothing prevented ICG from suing the employer elsewhere.

On February 27, 1985, ICG moved for reconsideration of the February 12 order and provided a new affidavit to the effect that McClain's employer had filed a special and limited appearance in Madison County contesting the Illinois court's jurisdiction. The motion for reconsideration was denied on April 1, 1985. The appellate court denied ICG's subsequent petition for leave to appeal from that ruling, and the company's petition for leave to appeal to this court was denied in May 1986.

The forum non conveniens motion giving rise to this appeal was filed by ICG on July 30, 1986. The only new ...


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