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Gaidar v. Tippecanoe Distribution Service Inc.

October 28, 1998

SYLVIA M. GAIDAR, AS INDEPENDENT ADM'R OF THE ESTATE OF MARK S. GAIDAR, A/K/A MARK S. ROSE, DECEASED, PLAINTIFF-APPELLANT,
v.
TIPPECANOE DISTRIBUTION SERVICE, INC., AND DAVID L. STEELE, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice David Cerda

Appeal from the Circuit Court of Cook County

Honorable Paddy H. McNamara, Judge Presiding.

The determinative issue on appeal is whether the nonresident defendants are subject to the jurisdiction of the Illinois courts either under the doing-business doctrine (735 ILCS 5/2--209(b)(4) (West 1996)) or on the basis that the cause of action arose from the transaction of business in Illinois (735 ILCS 5/2--209(a)(1) (West 1996)).

Plaintiff, Sylvia M. Gaidar, as independent administrator of the estate of Mark S. Gaidar, also known as Mark S. Rose, deceased (decedent), appeals from the dismissal of her negligence complaint against defendants, Tippecanoe Distribution Service, Inc., and David L. Steele, both Indiana residents, arising out of a collision in Indiana between decedent's car and a Tippecanoe truck driven by Tippecanoe employee Steele, who had been driving the truck earlier that day in Illinois. We affirm the dismissal of Steele as a defendant and reverse the dismissal of Tippecanoe as a defendant.

FACTS

Plaintiff filed a complaint on May 16, 1996, against defendants alleging that plaintiff was appointed as independent administrator of the estate of Mark S. Gaidar in the circuit court of Will County, Illinois. The complaint did not allege where plaintiff or decedent resided. Plaintiff further alleged that (1) Tippecanoe was a corporation that conducted business in Cook County, Illinois; (2) on October 20, 1995, decedent was driving his car in Indiana, and David A. Steele negligently crashed his tractor trailer truck into the rear of decedent's vehicle; (3) the truck was owned by Tippecanoe, and Steele was acting as Tippecanoe's employee; and (4) decedent was treated at a Chicago hospital and died as a result of the accident. Plaintiff sought compensation for decedent's estate and next of kin.

Defendants filed a special and limited appearance and a motion seeking to quash service and dismiss the cause of action for lack of personal jurisdiction. Defendants filed in support of their motion the affidavit of Steele, who swore that he was a resident of Indiana then and at the time of the occurrence and that, at the time of the accident in Indiana, he was driving for Tippecanoe. Defendants also filed the affidavit of Jeffery Baumgartner, the president and chief executive officer of Tippecanoe.

On March 14, 1997, plaintiff moved, in an initial response to the motion to dismiss, for leave to conduct limited discovery on the issue of jurisdiction. The court granted the request.

Pursuant to the discovery order, the deposition of Baumgartner was taken on May 1, 1997, and defendants filed it in support of their motion to dismiss. He testified that he owned Tippecanoe, which was an interstate motor carrier that transported freight. Tippecanoe was incorporated in Indiana and had an office in Lafayette, Indiana; there were no other offices. Tippecanoe was authorized to handle general commodities in all 48 states and had authority to operate trucks in Illinois. The most dominant region for Tippecanoe was the Midwest, including Illinois. Tippecanoe did not advertise for business, but Tippecanoe belonged to associations that had directories listing its name. Tippecanoe paid fuel tax only to Indiana, and Indiana sent some of the fuel tax money to Illinois.

Baumgartner further testified that Steele took a trip to Northlake, Illinois, the day of the accident. Steele's log also stated he was in South Holland, Bridgeview, and Beecher, Illinois, that day. Steele made a pickup and possibly made a delivery in Illinois that day. "From time to time," Tippecanoe made pickups and deliveries in Cicero, Franklin Park, Bedford Park, Alsip, and Chicago, Illinois. "Once in a while," Tippecanoe made pickups and deliveries in McCook, Illinois. "Fewer than 30 times a year," Tippecanoe went to a company in Alsip, Illinois. Northwestern Salt Company located in the Chicago area also gave Tippecanoe a lot of shipments. Tippecanoe usually delivered loads to the railroad yards and had interchange agreements with three railroads. Tippecanoe would typically pick up loads at the Santa Fe yard or at one of the Chicago & Northwestern yards in the Chicago area. Tippecanoe did not have any "big customers" in Illinois; Tippecanoe had "irregular customers" in Illinois.

Baumgartner further testified that he estimated that, in a typical month in the last three or four years, less than 2% of shipments originating or terminating were for customers in Illinois. The estimate was based on the company's mileage statistics. Less than 10% of the total miles were driven in Illinois; his calculation was based on the mileage that was reported for fuel tax and licensing purposes. (A document prepared for Indiana listed mileage of 195,427 for Illinois for the period from July 1, 1995, through June 30, 1996, and the total miles for that period was noted as being 1,910,454.) Tippecanoe's average revenue per mile was $1.32, but Baumgartner could not estimate the percentage of gross revenues from Illinois trips.

On July 2, 1997, plaintiff filed a motion to strike the affidavit of Baumgartner for failure to meet the requirements of Supreme Court Rule 191. 145 Ill. 2d R. 191. Plaintiff's motion challenged these statements in Baumgartner's affidavit:

"4. Though Tippecanoe's drivers do utilize roadways within Illinois, less than 10% of the total miles driven on behalf of the company were driven in Illinois. This includes trips where the driver is just passing through Illinois on the way to his destination. Less than 2% of all trips made by Tippecanoe drivers originate or terminate in Illinois."

Also on July 2, 1997, plaintiff filed a response to the motion to dismiss. Among the documents filed by plaintiff in support was the affidavit of Randolph Greune, an attorney who had attended Baumgartner's deposition. He swore that in May 1997 he observed a map of Cook County in the reception area at the Tippecanoe office and that the map circled in black towns in Illinois commonly associated with transportation, including Cicero, Franklin Park, Melrose Park, Forest Park, McCook, Bedford Park, Alsip, and two areas in Chicago.

On August 6, 1997, the trial court denied the motion to strike, finding that Baumgartner's deposition "contained facts addressed in affidavit." On that date, the trial court also granted the motion of defendants to quash service and dismissed the case with prejudice for lack of jurisdiction. The trial court found in part that Tippecanoe's business contacts in Illinois were only occasional and irregular.

Plaintiff appealed on September 5, 1997.

DISCUSSION

I. Motion to Dismiss Appeal

Defendants have moved to dismiss the appeal as moot because plaintiff previously filed an action that is pending in Indiana and that also alleges the same conduct of defendants. We deny the motion to dismiss because defendants have cited no authority to support their argument. 155 Ill. 2d R. 341(e)(7); ...


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