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Czarnecki v. Uno-Ven Co.

May 27, 2003

TIMOTHY D. CZARNECKI, PLAINTIFF-APPELLEE,
v.
UNO-VEN COMPANY, A/K/A UNION OIL COMPANY OF CALIFORNIA; VERNON L. GOEDECKE, INC.; FOSTER WHEELER CONSTRUCTORS, INC.; AND INTERSTATE SCAFFOLDING, INC., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 01 L 7258 Honorable Diane J. Larsen, Judge Presiding.

The opinion of the court was delivered by: Justice O'malley

UNPUBLISHED

Defendants Uno-Ven Co. (Uno-Ven), Foster Wheeler Constructors, Inc. (Foster-Wheeler), Interstate Scaffolding, Inc. (Interstate), and Vernon L. Goedecke, Inc. (Goedecke), appeal from an order of the circuit court denying their motions to transfer this case to Will County based on forum non conveniens. *fn1 On appeal, defendants contend that the trial court's denial of their motions to transfer was an abuse of discretion because: (1) the balancing of public interest factors and private interest factors strongly favors transfer to Will County; (2) plaintiff Timothy Czarnecki's decision to file his cause of action in Cook County should be granted less deference because his place of residence and the situs of his injury are in Will County; and (3) deference to plaintiff's choice of venue is diminished further by the fact that plaintiff originally filed his cause of action in Will County but voluntarily dismissed the case on the eve of trial and later refiled in Cook County. For the following reasons, we reverse the order of the trial court.

BACKGROUND

In Will County in 1996, plaintiff filed his original personal injury action against defendants and eventually filed his amended complaint on August 19, 1998. It alleged that on August 27, 1994, plaintiff suffered a wrist injury while working on a heat exchanger at the Uno-Ven refinery located in Will County. The complaint named Uno-Ven, Goedecke (the scaffolding contractor), Interstate (the scaffolding contractor) and Foster-Wheeler (the general contractor) as defendants. Plaintiff's employer at the time of the accident was Brooks Erection & Construction Co. (Brooks). Plaintiff's eight-count complaint further alleged that his injuries were proximately caused by each defendant's negligence and willful violation of the Structural Work Act (740 ILCS 150/0.01 through 9 (West 1994)(repealed by Pub. Act 89-2, § 5, eff. February 14, 1995)). On June 20, 2000, the Will County circuit court allowed plaintiff's motion to voluntarily dismiss his cause of action without prejudice. The case had been set for a July 10, 2000, trial date.

In Cook County on June 18, 2001, plaintiff filed a personal injury action. The eight-count complaint was virtually identical to plaintiff's earlier complaint filed in Will County. No new defendants, allegations, or theories of liability were added.

On August 2, 2001, Uno-Ven motioned to transfer the case to Will County based on the doctrine of forum non conveniens. Foster-Wheeler and Goedecke also filed motions to that effect on August 15, 2001, and August 29, 2001, respectively.

The motions filed by Uno-Ven and Foster-Wheeler argued that, under a forum non conveniens analysis, the pertinent public interest and private interest factors strongly favor transfer to Will County. Each motion attached copies of plaintiff's complaint filed in Will County and plaintiff's complaint filed in Cook County, showing that the two complaints were virtually identical.

In its motion to transfer to Will County, Goedecke observed that extensive discovery had been undertaken during the four years that the same cause of action was in Will County. Goedecke supported his present motion with plaintiff's deposition and answers to interrogatories, which were filed in the Will County action and established that: (1) plaintiff and his wife reside in Will County; (2) the Uno-Ven refinery where plaintiff was injured is located in Will County; (3) Robert Halweg, the only occurrence witness cited by plaintiff's answers, is a Will County resident; (4) Carlos Santiago, a person at the scene immediately before, at the time of, or immediately after the occurrence resides in Ogle County; (5) plaintiff's treating doctors, Dr. Johnathan R. Javors and Dr. Ralph Richter, are Indiana residents; (6) plaintiff's wrist was operated on by Dr. Daniel Mass, who practices in Cook County; (7) plaintiff was also treated by a Dr. Carroll; (8) as a result of his injury, plaintiff retained a vocational counselor employed by Concentra, a firm located in Cook County; and (9) the 1999 Statistical Summary from the Annual Report of the Illinois Courts states that the average time lapse between date of filing and date of verdict for law jury cases over $50,000 is 43.5 months in Cook County and 32 months in Will County.

Plaintiff's response to defendants' motions to transfer provided a table *fn2 purporting to designate the appropriate county of "individuals and/or offices provided by Defendant's [sic] in their answers to Supreme Court Rule 213." This table was not supported by any attached documentation. Plaintiff's table asserts that: (1) Dr. Carroll, Dr. Mass and Concentra maintain offices in Cook County, as do defendant's witnesses Dr. Vender and Mr. Holland; (2) one current or former Brooks employee (Foody) resides in Cook County; (3) the Uno-Ven refinery where plaintiff was injured, one current or former Goedecke employee (Nippert), and one current or former Brooks employee (Cronkrite) are located in Will County; (4) the occurrence witness (Halweg) and one former or current Goedecke employee (Hibler) are located in Grundy County; (5) five other potential witnesses reside downstate in McLean, Ogle, Macoupin, Madison and St. Clair Counties; and (5) three potential witnesses live in Indiana. Our research reveals that plaintiff's motion incorrectly states Foody's and Halweg's location. Both Foody and Halweg are actually Will County residents. Plaintiff's response further alleged that each defendant has a Cook County registered agent and that defendants transact a significant amount of business in Cook County.

Uno-Ven filed a reply to plaintiff's response and supported its reply with its own answers to interrogatories filed in the Will County case. These answers indicated that it may call at trial: (1) five current or former Goedecke employees, including Hibler and Nippert; (2) eight current or former Brooks employees, including Cronkrite, Foody, and Halweg; (3) four current or former Uno-Ven employees; (4) seven current or former Foster-Wheeler employees; (5) the expert testimony of Dr. Michael Vender and Eugene Holland, who were retained by Uno-Ven; and (6) plaintiff's treating doctors, Dr. Javors and Dr. Richter. Uno-Ven's answers did not provide the addresses of any of the potential witnesses listed.

On December 4, 2001, the circuit court denied defendants' motions to transfer the case back to Will County.

Based on our review of the record before us, plaintiff's place of residence and the situs of his injury are in Will County. Furthermore, five witnesses named in the parties' Rule 213 (177 Ill. 2d R. 213) answers are Will County residents, including Halweg, the sole occurrence witness. Two of plaintiff's treating doctors, plaintiff's vocational counselor and two defense-retained opinion witnesses are Cook County contacts. Defendants also have registered agents in Cook County. Nine other witnesses listed in the parties' discovery answers are dispersed among six Illinois counties and an Indiana county. The locations of the 16 remaining potential witnesses are not established by the record.

On appeal, defendants contend that: (1) the balancing of public interest and private interest factors strongly favors transfer to Will County; (2) plaintiff's decision to file in Cook County should be granted less deference because neither his place of residence nor the site of his injury is located in Cook County; and (3) the deference typically accorded to a plaintiff's forum choice is further diminished in the instant case because plaintiff originally ...


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