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Pendergast v. Meade Electric Co., Inc.

Court of Appeals of Illinois, First District, Sixth Division

August 27, 2013

THOMAS PENDERGAST, as Executor of the Estate of LISA RICHTER, Deceased, Plaintiff-Appellee,
v.
MEADE ELECTRIC COMPANY, INC., an Illinois Corporation; THORNE ELECTRIC, INC., an Illinois Corporation; ECONOLITE GROUP, INC., a California Corporation, d/b/a Econolite Group Company, Econolite Control Products, Inc., and Econolite; ALEX P. DYCHE, Individually; and OLSSON ROOFING COMPANY, INC., an Illinois Corporation, Defendants-Appellants (Metro Transportation Group, Inc., an Illinois Corporation, and Traffic Control Corporation, an Illinois Corporation, Defendants).-ROBERT R. LEATHERS, Plaintiff-Appellee,
v.
ALEX P. DYCHE, Individually; OLSSON ROOFING COMPANY, INC., an Illinois Corporation; MEADE ELECTRIC COMPANY, INC., an Illinois Corporation; THORNE ELECTRIC, INC., an Illinois Corporation; and ECONOLITE GROUP, INC., a California Corporation, d/b/a Econolite Group Company, Econolite Control Products, Inc., and Econolite, Defendants-Appellants (Traffic Control Corporation, an Illinois Corporation; Metro Transportation Group, Inc., an Illinois Corporation; and Thomas Pendergast, Executor of the Estate of Lisa Richter, Deceased, Defendants).

Held: [*]

In two actions filed in Cook County arising from a traffic accident that occurred in Kendall County, the trial court did not abuse its discretion in denying a motion to transfer both cases to Kendall County based on the doctrine of forum non conveniens, since only two of the relevant factors favored a transfer, but due to the passage of more than 30 days from the trial court’s order transferring third-party claims to Kendall County, the appellate court lacked jurisdiction to consider that issue.

Appeal from the Circuit Court of Cook County, Nos. 10-L-4072, 10-L- Review 4075; the Hon. James N. O'Hara, Judge, presiding.

Steven E. Danekas and Catherine Basque Weiler, both of Swanson, Martin & Bell, LLP, Francis J. Marasa, of Marasa & Lewis, Jeremiah P. Connolly, of Bollinger Connolly Krause LLC, and Joseph B. Carini III, of Johnson & Bell, Ltd., all of Chicago, for appellants.

Scott R. Clewis, of Law Offices of Thomas J. Popovich, PC, and Martin Healy, Jr., David Huber, and Dennis M. Lynch, all of Healy Law Firm, both of Chicago, for appellees.

Justices Quinn and Simon concurred in the judgment and opinion.

OPINION

CONNORS, JUSTICE

¶ 1 Following a traffic accident, plaintiff Robert Leathers initially filed a negligence action in the circuit court of Kendall County. Lisa Richter was killed in that accident and plaintiff Thomas Pendergast, as executor of her estate, filed a wrongful death and survival action in the circuit court of Cook County. Leathers then voluntarily dismissed the Kendall County action and refiled his action in Cook County, adding new defendants. Several defendants moved to transfer both actions to Kendall County under the doctrine of forum non conveniens. The circuit court of Cook County denied the motion. Defendants now appeal, arguing that the court's decision was an abuse of discretion. They also contend that the court abused its discretion in severing third-party claims against the County of Kendall and transferring them back to the circuit court of Kendall County. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Lisa Richter, a resident of Oswego, Kendall County, was driving eastbound on Lewis Street in Oswego, Kendall County, when her car collided with a truck driven by defendant Alex Dyche of Montgomery, Kendall County, allegedly while he was in the course of his employment with defendant Olsson Roofing Company, of neighboring Kane County. Richter was killed instantly and her passenger, plaintiff Robert Leathers, who also lived in Kendall County at the time, was injured. Shortly thereafter, Leathers filed a negligence action in Kendall County against Dyche and Olsson.

¶ 4 Richter's mother initially was appointed as the administrator of her estate, which was probated in Kendall County. About a year after the accident, the probate court granted an emergency motion to substitute Richter's uncle, plaintiff Thomas Pendergast, as the administrator of her estate. The same day, Pendergast, of Tinley Park, Cook County, filed the instant lawsuit on Richter's behalf in Cook County. Pendergast asserted wrongful death and survival claims which pleaded negligence against defendants Meade Electric Company, Thorne Electric, Metro Transportation Group, and Traffic Control Corporation for their allegedly negligent design of the traffic signal system at the intersection where the accident occurred. He also asserted negligence claims against Dyche and Olsson. Additionally, Pendergast asserted products liability claims in negligence and strict liability against defendant Econolite for its allegedly faulty design and manufacture of the traffic signal equipment used at the intersection.

¶ 5 At about the same time, Leathers voluntarily dismissed his complaint in Kendall County and refiled in Cook County. In his new lawsuit, Leathers reasserted his negligence claims against Dyche and Olsson and added claims against Meade, Thorne, Metro Transportation Group, and Traffic Control Corporation. He asserted the same products liability claims against Econolite and Atlantic Scientific, which made component parts for the traffic signals. Additionally, Leathers included a negligence claim against Richter.

¶ 6 Dyche and Olsson then filed motions to transfer both actions to Kendall County pursuant to the doctrine of forum non conveniens. They argued that this litigation has no meaningful connection to Cook County and that Kendall County is a more appropriate venue. Specifically, they argued that Kendall County was more convenient for most of the parties and that witnesses and evidence were located in or near Kendall County. The accident occurred in Kendall County between three Kendall County residents. The two known witnesses to the accident were residents of Kendall County and La Salle County, which is adjacent to Kendall County. The Oswego fire department responded to the accident and transported Leathers to a Kane County hospital. The Kendall County coroner investigated Richter's death. The Oswego police department investigated the accident and conducted an accident reconstruction.

ΒΆ 7 Dyche and Olsson argued that although a plaintiff's choice of venue ordinarily is entitled to great weight, less deference is given to that decision when the plaintiff's choice is not the site of the accident or the county in which he resides. Thus, they argued that the accident did not occur in Cook County; that Leathers' choice of venue is not entitled to deference because he does not live in Cook County; and that Pendergast is a nominal plaintiff whose residence is immaterial for determining the ...


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