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01/11/94 PAULA VICTORIA HULSEY AND MICHAEL HULSEY

January 11, 1994

PAULA VICTORIA HULSEY AND MICHAEL HULSEY, PLAINTIFFS-APPELLEES,
v.
JAYCE SCHEIDT, APPLETON COMPANY, INC., A CORPORATION, AND CHRYSLER CORPORATION, A CORPORATION, DEFENDANTS-APPELLANTS.



INTERLOCUTORY APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOSEPH N. CASCIATO JUDGE PRESIDING.

Rehearing Denied March 16, 1994. Released for Publication April 19, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Scariano, DiVITO, Hartman

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court: Defendant Appleton Company, Inc. brings an interlocutory appeal pursuant to Supreme Court Rule 306(a)(1)(iii) (134 Ill. 2d R. 306(a)(1)(iii)), seeking review of the circuit court's denial of its motion to quash service for want of jurisdiction over its person. In a separate but now consolidated interlocutory appeal, defendants Jayce Scheidt and Chrysler Corporation appeal from the circuit court's denial of their joint motion seeking a dismissal of plaintiffs' action and a transfer to Lake County, Indiana under the doctrine of forum non conveniens pursuant to Supreme Court Rule 306(a)(1)(ii). (134 Ill. 2d R. 306(a)(1)(ii).) We affirm in part, reverse in part and remand the action to the circuit court.

On September 15, 1990, at approximately 3 a.m., plaintiff Paula Hulsey was a passenger in a 1988 Plymouth Voyager Minivan which was designed, manufactured, distributed and sold by defendant Chrysler Corporation, a Delaware corporation which does business on a national and global scale. The van was operated by her husband and co-plaintiff Michael Hulsey who was proceeding eastbound on U.S. Route 30 through Merrillville, Indiana. The Hulseys are citizens of Georgia, residing in the town of Decatur.

When the van reached the intersection of U.S. 30 and Indiana State Route 53, which in Merrillville is known as Broadway, it was struck by a vehicle which was owned and maintained by defendant Appleton Company, Inc., a corporation organized under the laws of Indiana, and which was being operated by Appleton's employee, defendant Jayce Scheidt, a citizen of Indiana. The front of Scheidt's truck impacted with the rear of the van on its drivers' side. At the moment of impact, the mechanism which was designed to secure the rear door to the frame and to ensure that it did not become unlatched failed when Paula struck it. After the force of Paula's contact opened the rear door, she continued outward, propelled by the rapid acceleration of the van. The Merrillville police department accident investigator estimated that she vaulted approximately 60 feet through the air before striking the pavement.

When Scheidt was interviewed at the scene of the accident, he reported that he hit the van because he could not stop due to a complete failure of his brakes. The police also interviewed two other witnesses to the accident; the first, Johnnie Gill, a resident of Gary, Indiana, and the other, Catherine Frazier, is a resident of Hammond, Indiana. In addition, all the police officers who responded to thereport of the accident or who later investigated it were in the employ of the Merrillville police department and residents of Indiana. After the department's investigation of the accident was complete, the wreck of the van was taken to a garage in Merrillville; and at the time this matter was heard in the circuit court it was stored at the home of a relative of plaintiffs' in Lansing, Illinois.

Paula was initially treated by paramedics of the Lake County Indiana emergency medical services department who then transported her to Methodist Hospital in Merrillville. She suffered an injury to her spinal cord, completely paralyzing her below the neck. After stabilizing treatment in Indiana, she was transferred to Northwestern Memorial Hospital in Chicago, where she remained from September 15, 1990 until October 19, 1990. Thereafter, she was taken to The Spain Rehabilitation Center in Birmingham, Alabama for further treatment. While in Chicago she was seen and/or treated by 33 different medical professionals and saw nine additional doctors while in Alabama.

Plaintiffs filed the instant action in the circuit court of Cook County. After being served by summons at its corporate office in Indiana, Appleton moved to quash service, maintaining that as an Indiana corporation with its principal activities in that State, it could not be considered to be "doing business" in Illinois as required by section 2-209(b)(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-209(b)(4)). In a deposition taken to determine the degree of Appleton's business involvement in Illinois, Charles Appleton, an officer and a 50% shareholder of the corporation, disclosed that although the vast majority of the company's revenue came from the installation, service and wholesaling of garage doors in Indiana, it did perform some work in Illinois. In fact, in 1986 or 1987, the corporation was notified by the Illinois Department of Revenue that it had to become registered for tax purposes in Illinois and thereafter remit to the State a tax as a percentage of the revenue earned from sales in Illinois. Appleton roughly estimated that the business it did in Illinois provided 1% to 2% of the corporation's gross revenue, a percentage which had remained constant even after the corporation initiated a business expansion campaign in the late 1980's aimed at potential customers in Illinois as well as those in Indiana.

In order to facilitate this campaign, Appleton advertised in Illinois. It purchased space in regional and municipal yellow pages in Illinois, focusing on southeast suburban communities such as Lansing, Calumet City and South Holland, Illinois. The phone number listed in these directories carried the suburban Chicago area code, and the number to be dialed was a Harvey, Illinois exchange, which was then automatically forwarded to Appleton's sales agents in Indiana. The corporation also subscribed for two years to a periodical which listed construction projects in Illinois and other Midwest states for which bids were being accepted from subcontractors like Appleton. Although the corporation employed a three-man full-time sales force along with a fourth individual who worked part-time, its salesmen did not actively solicit customers in Illinois, but would enter the State only in order to respond to phone inquiries made by Illinoisans.

Appleton then reviewed the ledger the corporation kept for sales tax accounting, which showed that during the times relevant to this case, the corporation sold garage doors to a number of Illinois homeowners and businesses. He also disclosed that his corporation had a "semi"-exclusive dealings agreement with Raynor Manufacturing, an Illinois company which supplies Appleton with the garage door sections it installs. Pursuant to this "gentlemen's" agreement, Raynor would ensure that no other installer of its overhead doors would encroach upon a sales territory within a 15-mile radius of Griffin, Indiana, which has been preserved for Appleton. The area embraces a salient which extends into Illinois approximately five miles at its deepest penetration, and includes the communities in which Appleton advertises in the yellow pages. As another aspect of its relationship with Raynor, agents of Appleton travel each week to Rockford, Illinois, in order to pick up from Raynor the overhead doors Appleton contracts to install.

After considering the arguments of the parties, the circuit court denied Appleton's motion to quash service, finding that the corporation was "doing business" in Illinois. Appleton then timely applied for leave to file this interlocutory appeal, which we granted.

Subsequently, defendants Chrysler Corporation and Jayce Scheidt moved the circuit court seeking a dismissal of the action and a transfer to Lake County, Indiana under the principles of forum non conveniens. The court expressed the view that since this was a products liability action, the majority of the witnesses would be experts, and according to the court, "no one knows where they are coming from." In addition, with regard to Paula's injuries, the court considered it significant that most of her doctors were either in Chicago or Alabama. He also mentioned that the van was stored in Lansing, Illinois. The court therefore denied the joint motion ...


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