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02/13/96 WHIRLPOOL CORPORATION v. CERTAIN

February 13, 1996

WHIRLPOOL CORPORATION, PLAINTIFF-APPELLANT,
v.
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EDWARD C. HOFERT, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

Both sides in this lawsuit are shopping for a friendly forum.

Whirlpool, a Michigan corporation, wants to try its insurance indemnity claim against Lloyd's, a group of English insurance underwriters, in Illinois. Lloyd's wants to try the case in Michigan. The environmental spill that created this insurance coverage controversy took place in Arkansas.

The threshold issue is whether the "service of suit" clause in the parties' insurance contract requires that the case be tried in Illinois. The trial judge said it did not. He then granted Lloyd's motion to dismiss on forum non conveniens grounds.

While we agree that the contract did not require an Illinois forum, we vacate the trial judge's dismissal order and remand this cause for further proceedings.

FACTS

Whirlpool is a Delaware corporation authorized to do business in Illinois. Whirlpool's principle place of business and world headquarters is Benton Harbor, Michigan. Defendants are insurers located in London, England and countries other than the United States, who subscribed to umbrella and excess insurance polices issued to Whirlpool for the Years 1971 through 1977.

On January 29, 1974, the Fort Smith Division of Whirlpool began disposing of solid and liquid waste at the Industrial Waste Control (IWC) facility near Fort Smith, Arkansas. The Arkansas Department of Pollution Control and Ecology approved the disposal. Whirlpool stopped sending waste to the site in March 1977.

In 1982, the United States Environmental Protection Agency (USEPA) named the Fort Smith IWC site a "superfund" site pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. sec. 9601, et. seq. On January 4, 1984, the USEPA sent a letter to Whirlpool, among others, placing Whirlpool on notice that it was potentially responsible for the costs incurred in investigating and cleaning up the Fort Smith IWC site.

On April 2, 1993, Whirlpool filed a complaint for declaratory judgment against defendants based on defendants' failure to fulfill their contractual obligations and their failure to indemnify Whirlpool with respect to losses incurred in connection with the Fort Smith IWC site. Plaintiff's complaint alleges: In February 1971 and May 1974, Whirlpool purchased umbrella and excess insurance policies from certain underwriters at Lloyd's through Lloyd's authorized agent, Bowes, an Illinois corporation. Lloyd's issued various policies of insurance to Whirlpool through Bowes' principal place of business in Cook County, Illinois. Whirlpool was insured under those policies from February 15, 1971, through May 31, 1977.

Whirlpool alleges that as of July 31, 1991, it had incurred $5,726,000 in investigation and remediation costs under the direction and supervision of the responsible government entities. Whirlpool's complaint alleges that it continues to perform necessary and reasonable remedial action and continues to suffer loss and incur costs due to the Fort Smith IWC claim.

In its underlying claims, Whirlpool alleges that an "accident or occurrence or bodily injury, or injury to or destruction of property occurred" during some part of the policy years Lloyd's policies were in effect. Whirlpool contends Lloyd's policies cover expenses incurred in connection with Whirlpool's clean up of the Fort Smith IWC site.

Defendants appeared in the present case on May 28, 1993, and submitted to jurisdiction in Illinois.

On August 6, 1993, defendants moved to dismiss the action for forum non conveniens. Defendants contended that either Michigan, the location of Whirlpool's corporate headquarters, or Arkansas, the location of the Fort Smith IWC site, was a more convenient forum for the litigation.

The trial court first ruled that the "service of suit" provision was not a binding forum selection clause. Then, after a hearing, the trial court granted defendant's motion and dismissed Whirlpool's action in Illinois on forum non conveniens grounds. Whirlpool later filed a motion to reconsider. That motion was denied.

Whirlpool appeals the trial court's granting of the forum non conveniens motion and the denial of the motion to reconsider.

After the dismissal of Whirlpool's action in the trial court and during the pendency of this appeal, defendants filed a declaratory judgment action in the United States District Court for the Western District of Michigan, seeking a declaration that they were not compelled to indemnify Whirlpool under the terms of the same insurance policies at issue in this action. That case is pending. See ...


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