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07/31/97 ERVIN J. ELLING v. STATE FARM MUTUAL

July 31, 1997

ERVIN J. ELLING, PLAINTIFF-APPELLEE,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND ELLERBE BECKET, INC., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Jennifer Duncan-Brice, Judge Presiding.

Released for Publication September 11, 1997.

The Honorable Justice Burke delivered the opinion of the court. Wolfson, P.j., and Cerda, J., concur.

The opinion of the court was delivered by: Burke

The Honorable Justice BURKE delivered the opinion of the court:

Defendants State Farm Mutual Automobile Insurance Company (State Farm) and Ellerbe Becket, Inc. (Becket) appeal from an order of the circuit court of Cook County denying their motion to transfer venue pursuant to the doctrine of intrastate forum non conveniens. On appeal, defendants contend that the trial court abused its discretion because it failed to properly consider the relevant factors under this doctrine. For the reasons set forth below, we affirm.

On February 5, 1993, plaintiff Ervin Elling was working in a building at a construction site in Bloomington, McLean County, Illinois, when he allegedly fell through a hole in the second floor decking. As a result of the fall, plaintiff broke both his legs. On November 9, 1993, plaintiff, who resides in Tazewell County, Illinois, filed a two-count complaint in the circuit court of Cook County against State Farm and Becket, as well as Ozark Steel Fabricators, Inc. (Ozark), Hanson Engineering, Inc., George Hyman Construction Company and Cordeck Sales, Inc. (Cordeck), *fn1 based on negligence and violation of the Structural Work Act. State Farm, Becket and Cordeck filed motions to transfer venue from Cook County to McLean County pursuant to the doctrine of forum non conveniens and Illinois Supreme Court Rule 187 (134 Ill. 2d R. 187(a)), arguing that most of the witnesses resided in or around McLean County and that the events leading to plaintiff's injuries occurred in McLean County. Ozark also objected to Cook County as a forum. *fn2 On September 6, 1994, the trial court denied the motions based on its determination that defendants failed to make an affirmative showing as to the inconvenience of Cook County as a forum. More specifically, the court stated:

"*** Let me tell you on these forum non conveniens cases what I think is key and that I don't see here *** what Schoon v. Hill [ 207 Ill. App. 3d 601, 566 N.E.2d 718, 152 Ill. Dec. 841] says *** is that you've got to show me how it's inconvenient *** you haven't met your burden."

State Farm and Becket filed a motion for reconsideration, in which Cordeck joined. On January 11, 1995, the trial court denied the motion, again stating that defendants had not shown any inconvenience, and commented that five of the six defendants had offices and/or registered agents in Cook County and only four of the six defendants joined in the motion to transfer. State Farm and Becket (defendants) appeal from the order denying their motion for reconsideration.

Defendants contend that the private and public factors, applicable in determining whether to transfer venue pursuant to the doctrine of forum non conveniens, strongly favor transfer of the case from Cook County to McLean County. Defendants further argue that the trial court erred in denying their motion to reconsider by improperly relying on the fact that five of the six defendants had offices and/or agents in Cook County and that only four of the six defendants moved to transfer venue.

"The forum non conveniens doctrine is premised on convenience ***, and applies when convenience, fairness and efficient judicial administration demand that a trial be held in a forum which bears a relationship to the litigation." Bjurstrom v. Commonwealth Edison Co., 144 Ill. App. 3d 743, 746, 494 N.E.2d 801, 98 Ill. Dec. 679 (1986). A reviewing court will not disturb a circuit court's granting or denying of a forum non conveniens motion absent an abuse of discretion. Meyers v. Bridgeport Machines Division of Textron, Inc., 113 Ill. 2d 112, 117-18, 497 N.E.2d 745, 100 Ill. Dec. 567 (1986). The doctrine of forum non conveniens presupposes that more than one court exists with authority to hear the case. Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279, 287, 507 N.E.2d 838, 107 Ill. Dec. 685 (1987).

Under the forum non conveniens doctrine, "the private interests of the litigants[,] as well as the public interest must be balanced by the circuit court in ruling on a forum non conveniens motion." Schoon v. Hill, 207 Ill. App. 3d 601, 605, 566 N.E.2d 718, 152 Ill. Dec. 841 (1991). A court may deny jurisdiction in order to better serve the convenience of the litigants and to reach justice. Weaver, 116 Ill. 2d at 287. The private interest factors include: availability of an alternate forum, access to sources of proof, accessibility of witnesses, convenience of the parties, and possibility of viewing the premises, if appropriate. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839, (1947); Torres v. Walsh, 98 Ill. 2d 338, 351, 456 N.E.2d 601, 74 Ill. Dec. 880 (1983). The public interest factors include: the relative court congestion, local interest in the case, and the burden of jury duty on citizens in an unrelated forum. Bland v. Norfolk & Western Ry. Co., 116 Ill. 2d 217, 224, 506 N.E.2d 1291, 107 Ill. Dec. 236 (1987). These factors must strongly favor the defendant in order to override the plaintiff's statutory right to select the forum. Torres, 98 Ill. 2d at 351. However, this right is accorded less deference when the plaintiff does not reside in the county he has chosen ( Washington v. Illinois Power Co., 144 Ill. 2d 395, 400, 581 N.E.2d 644, 163 Ill. Dec. 490 (1991)), and the situs of the injury is not located in the chosen forum ( Peile v. Skelgas, Inc., 163 Ill. 2d 323, 338, 645 N.E.2d 184, 206 Ill. Dec. 179 (1994)).

We find Schoon dispositive of the case at bar. In Schoon, the plaintiff brought an action in Cook County against his doctor and the manufacturer of a drug which he used, alleging claims of negligence, medical malpractice and products liability. The plaintiff did not reside in Cook County, nor was the situs of the injury in Cook County. The defendant doctor filed a third-party action against the pharmacy that had sold the drug to the plaintiff. The pharmacy subsequently moved to transfer the case from Cook County to another county of its place of business or where the doctor resided and practiced pursuant to the doctrine of forum non conveniens. In support of its motion, the pharmacy offered the plaintiff's answers to the defendants' interrogatories, arguing that "a majority of potential witnesses" resided outside of Cook County, the sources of proof were all outside of Cook County and that Cook County lacked any significant factual connection to the case. (Emphasis added.) Schoon, 207 Ill. App. 3d at 607. The trial court denied the pharmacy's motion to transfer on a timeliness basis; the case had been in the trial court for four years before the pharmacy moved for a transfer to another forum.

In affirming the trial court, the Schoon court concluded that the pharmacy failed "to show how it or any of the other parties *** [would] be inconvenienced by the Cook County forum." Schoon, 207 Ill. App. 3d at 607. The Schoon court further stated, with respect to the private interest factors, that the pharmacy failed to offer anything, other than the defendants' interrogatories, to show that the hospitals and doctors listed therein had any evidence which the pharmacy would need to use in its defense. The pharmacy further failed to show "which witnesses would actually be called to support its defense" and failed to "indicate what the testimony of potential witnesses would be, how their testimony would impact the defense or whether or not their depositions could be used successfully at trial." (Emphasis added.) Schoon, 207 Ill. App. 3d at 608, citing Weaver, 116 Ill. 2d 279, 289, 107 Ill. Dec. 685, 507 N.E.2d 838. The Schoon court further emphasized that the pharmacy "did not even provide the names and addresses of its own employees who had knowledge about the case and who would testify at trial." Schoon, 207 Ill. App. 3d at 608. In summary, the Schoon court stated that the pharmacy's "motion states only a conclusion and does not set out any facts to show that other forums would be more convenient for trial than Cook County." 207 Ill. App. 3d at 608.

With respect to the public factors, the Schoon court found that the pharmacy failed to offer evidence as to the condition of the dockets of the courts in counties other than Cook and, while agreeing that two other counties had an interest in resolving the litigation, the court stated that it could not conclude that simply because those counties had an interest in the case that the trial court ...


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