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06/20/96 ALBERT MILLER v. CONSOLIDATED RAIL

June 20, 1996

ALBERT MILLER, APPELLEE,
v.
CONSOLIDATED RAIL CORPORATION, APPELLANT.



The Honorable Justice McMORROW delivered the opinion of the court: Justice Miller, dissenting: Justice Heiple joins in this dissent.

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

This interlocutory appeal arises from the Madison County circuit court's order denying defendant's second motion to dismiss plaintiff's personal injury lawsuit, based on forum non conveniens, following the reinstatement of the lawsuit. The appellate court denied defendant's petition for leave to appeal the circuit court's ruling. 155 Ill. 2d R. 306. We subsequently allowed defendant's petition for leave to appeal (155 Ill. 2d R. 315), and now affirm the circuit court's order.

BACKGROUND

On May 17, 1993, plaintiff, Albert Miller, then a resident of Knox, Indiana, commenced this lawsuit by filing a complaint in the circuit court of Madison County against defendant, Consolidated Rail Corporation. Plaintiff's lawsuit, brought pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. § 51 et seq. (1988)), seeks recovery for injuries allegedly suffered during the course of his employment with defendant from May 1955 to April 1991. Plaintiff's complaint avers that throughout his tenure of work with defendant, he was exposed to repetitive trauma which has resulted in carpel tunnel syndrome and lumbar radiculopathy. *fn1

On June 19, 1993, defendant moved the circuit court to dismiss the suit, arguing, inter alia, that plaintiff's suit was time-barred under the three-year statute of limitations applicable to FELA lawsuits (45 U.S.C. § 56 (1988)). Before the trial court issued a ruling on this motion, defendant moved the court to decline jurisdiction of the lawsuit based on the doctrine of forum non conveniens. In support of the motion, defendant argued that Madison County was an inconvenient forum because plaintiff worked for defendant in Indiana and all of the occurrence and medical witnesses appeared to be Indiana residents. The motion was granted subject to the conditions of Supreme Court Rule 187 (134 Ill. 2d R. 187). In its order of October 22, 1993, the court ruled:

"Defendant's motion granted with the agreement of defendant[ ] that plaintiff shall have the right to refile said cause in another jurisdiction upon the condition that defendant waives the statute of limitations for 6 months from the date of this order.

If defendant fails to waive said statute of limitations this cause shall be reinstated. (Rule 187)."

On November 2, 1993, plaintiff filed his FELA lawsuit in the circuit court of St. Louis, Missouri, where defendant and counsel for plaintiff had several FELA matters pending at that time. On December 2, 1993, defendant moved the Missouri court to dismiss the suit for lack of jurisdiction and venue, and on February 8, 1994, defendant moved to dismiss the suit on the grounds that it was time-barred under FELA's three-year statute of limitations. The Missouri court denied both motions. On April 6, 1994, defendant filed its answer to the complaint and raised an affirmative defense based on the FELA statute of limitations. Thereafter, the parties took discovery.

On November 17, 1994, although the cause had twice been set for trial, defendant moved the Missouri court to dismiss the suit on the basis of forum non conveniens. Like the earlier forum motion filed in Illinois, this motion was also based on the theory that Indiana would be a more convenient forum. However, before the Missouri court ruled on this motion, plaintiff returned to the circuit court of Madison County and, on February 9, 1995, moved the court to reinstate his FELA lawsuit. In the motion, plaintiff asserted that under Supreme Court Rule 187(c)(2) (134 Ill. 2d R. 187(c)(2)) he was entitled to reinstate his lawsuit in Illinois because defendant had failed to abide by the conditions of the Madison County court's order of October 22, 1993, which required defendant to waive the statute of limitations defense while the suit was pending in the Missouri court.

Rule 187(c)(2) provides:

"Dismissal of an action under the doctrine of forum non conveniens shall be upon the following conditions:

(i) if the plaintiff elects to file the action in another forum within six months of the dismissal order, the defendant shall accept service of process from that court; and

(ii) if the statute of limitations has run in the other forum, the defendant shall waive that defense. If the defendant refuses to abide by these conditions, the cause shall be reinstated for further proceedings in the court in which the dismissal was granted." 145 Ill. 2d R. 187(c)(2).

In opposition to plaintiff's motion to reinstate, defendant argued that Rule 187(c)(2) was not a proper basis upon which to reinstate plaintiff's suit. Defendant charged that subdivision (c)(2)(i) of Rule 187 did not permit plaintiff to refile the dismissed action in Missouri, which defendant characterized as a more inconvenient forum than Illinois. Defendant also claimed that subdivision (c)(2)(ii) should not be interpreted to extend the statute of limitations if a lawsuit is time-barred when initially filed in Illinois. On March 24, 1995, the Madison County court rejected defendant's objections and granted plaintiff's motion to reinstate the case. Defendant moved the court to certify for appeal the questions it had raised in opposition to plaintiff's motion to reinstate (see 155 Ill. 2d R. 308), but the court denied this motion. On May 4, 1995, plaintiff voluntarily dismissed the lawsuit pending in Missouri.

On May 30, 1995, defendant once again moved the court to dismiss the lawsuit under the doctrine of forum non conveniens. Defendant's motion reiterated its position that Indiana was a more convenient forum. With the motion, defendant included excerpts from plaintiff's deposition testimony taken while the lawsuit was pending in Missouri wherein plaintiff testified that his employment with defendant was entirely in Indiana and that his medical witnesses were located in Indiana. On July 14, 1995, the circuit court denied defendant's forum motion.

On August 8, 1995, defendant filed a petition for leave to appeal to the appellate court. On September 13, 1995, the appellate court, exercising its discretion under Supreme Court Rule 306 (155 Ill. 2d R. 306), issued an order denying the petition. Thereafter, we granted defendant's petition for leave to appeal to this court under Supreme Court Rule 315 (155 Ill. 2d R. 315).

ANALYSIS

As a threshold matter, we address three arguments relied upon by plaintiff concerning why we should not consider defendant's appeal. Plaintiff contends that we do not have jurisdiction over defendant's appeal. Plaintiff also asserts that defendant's failure to obtain certification of the legal questions it now raises on appeal precludes our review of those issues. In addition, plaintiff claims that defendant's latest forum motion was untimely and therefore waived. We discuss each of these contentions in turn.

Jurisdiction

Plaintiff contends that this court does not have jurisdiction over defendant's appeal because defendant did not seek a timely appeal from the orders of the circuit court. Although defendant filed a notice of appeal within 30 days of the circuit court's order denying its latest forum motion, plaintiff asserts that the gravamen of defendant's appeal concerns the propriety of the circuit court's order of October 22, 1993, conditioning dismissal for forum non conveniens on defendant's compliance with the conditions in Rule 187(c)(2), and also the order of March 24, 1995, reinstating plaintiff's lawsuit. Neither of these orders were appealed by defendant. Plaintiff argues that defendant's latest forum motion does not raise any new matters and, as such, may not toll the time within which to seek a timely appeal from the circuit court's prior orders.

Supreme Court 306 (155 Ill. 2d R. 306) governs the filing requirements for interlocutory appeals to the appellate court from orders of the circuit court denying a motion to dismiss on the basis of forum non ...


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