Fennell v. Ill. Cent. R.R. Co.

Citation369 Ill.Dec. 728,2012 IL 113812,987 N.E.2d 355
Decision Date18 April 2013
Docket NumberNo. 113812.,113812.
PartiesWalter FENNELL, Appellee, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellant.
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Thomas R. Peters, Michael C. Hermann, Kenneth L. Halvachs, Boyle Brasher LLC, Belleville, for appellant.

William P. Gavin, Belleville, J. Timothy Eaton, Jonathan B. Amarilio, Shefsky & Froelich Ltd., Chicago, for appellee.

Herbert L. Zarov, Richard F. Bulger, Gary A. Isaac, Mayer Brown LLP, Chicago, for amici curiae Certainteed Corporation et al.

Brad A. Elward, Heyl, Royster, Voelker & Allen, Peoria, for amicus curaie Illinois Defense Trial Counsel.

Robert A. Clifford, Chicago (Robert P. Sheridan, of counsel), for amicus curiae Illinois Trial Lawyers Association.

OPINION

Justice FREEMAN delivered the judgment of the court, with opinion.

[369 Ill.Dec. 730]¶ 1 The circuit court of St. Clair County denied the motion of defendant, Illinois Central Railroad Company, to dismiss a personal injury suit of plaintiff, William Fennell, based on interstate forum non conveniens. A divided panel of the appellate court affirmed. 2012 IL App (5th) 100504, 357 Ill.Dec. 795, 964 N.E.2d 158. This court allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb. 26, 2010). We now reverse the judgment of the appellate court and the order of the circuit court, and remand the cause to the circuit court with directions to dismiss the action in accordance with our Rule 187(c)(2) (Ill.S.Ct. R. 187(c)(2) (eff. Aug. 1, 1986)).

¶ 2 I. BACKGROUND

¶ 3 In October 2002, plaintiff, with over 80 additional named plaintiffs, brought an action under the Federal Employers' Liability Act (FELA) (45 U.S.C. §§ 51–60 (2000)) against defendant in the circuit court of Jefferson County, Mississippi. Plaintiffs sought recovery for personal injuries they allegedly sustained as a result of exposure to “asbestos and asbestos-containing products” while employed by defendant. Plaintiffs alleged negligence under FELA and a violation of the Locomotive Inspection Act (49 U.S.C. §§ 20701–20703 (2000) (LIA, formerly known as Boiler Inspection Act)).

¶ 4 In 2004, plaintiff answered a set of defendant's interrogatories as follows. Plaintiff resided in Hazlehurst, Mississippi. Since 1970, plaintiff was employed by defendant as a brakeman, conductor, and engineer. Plaintiff stated that he was exposed to asbestos by working in defendant's facilities, and by working around and riding in defendant's diesel engines, box cars, and cabooses. Significantly, defendant's Interrogatory 21 asked plaintiff whether his employment with defendant “ever require[d] him to work in Jefferson County, Mississippi.” Plaintiff answered that “in his duties with [defendant] he did work in Jefferson County and did work with and/or around asbestos and asbestos containing products.” Defendant's Interrogatory 22 asked plaintiff to “identify by specific location (city, county, state) where he was allegedly exposed to asbestos. Plaintiff answered that it was “impossible with complete accuracy to recount at this time each specific location” of his exposure to asbestos. Plaintiff concluded his answer by stating: “This interrogatory will be supplemented.” In 2006, on defendant's motion, a Mississippi circuit court dismissed this consolidated action without prejudice.

¶ 5 In January 2009, plaintiff filed the instant complaint in the circuit court of St. Clair County, Illinois. Plaintiff again alleged negligence under FELA and a violation of LIA. Plaintiff alleged that he was employed by defendant from 1970 until 2007. During the course of his employment with defendant, plaintiff's required work “ caused him to be exposed to asbestos, diesel exhaust, sand, environmental tobacco smoke, toxic dusts, gases, and fumes which caused him to suffer permanent injuries to his lungs.”

¶ 6 Defendant propounded substantially the same set of interrogatories for the Illinois action as for the Mississippi action; plaintiff answered them in November 2009. Defendant's Interrogatory 21 asked plaintiff: “did your duties ever require you to work in St. Clair County, Illinois?” He answered, in full: Plaintiff has been to Mobile, Alabama[;] New Orleans, Louisiana [;] and Memphis, Tennessee. Plaintiff became an engineer in 1988. Engineer School in Homewood, Illinois for one month.” Defendant's Interrogatory 22 again asked plaintiff to identify the specific locations where he was exposed to the substances alleged in his complaint. His full answer: Plaintiff was mostly in and out of Jackson, Mississippi to Gulfport, Louisiana, and McComb [,] Mississippi.”

¶ 7 In May 2010, defendant filed a motion to dismiss the action pursuant to the interstate branch of the doctrine of forum non conveniens. See Ill. S.Ct. R. 187 (eff. Aug. 1, 1986). Defendant contended that Mississippi and not Illinois was the most convenient forum to try this case. The circuit court denied defendant's motion to dismiss. The appellate court granted defendant's petition for leave to appeal (Ill.S.Ct. R. 306(a)(2) (eff. Feb. 26, 2010)), and a divided panel of that court affirmed. 2012 IL App (5th) 100504, 357 Ill.Dec. 795, 964 N.E.2d 158. Justice Welch dissented, concluding as follows: “It is difficult, if not impossible, to find any nexus to Illinois, let alone to St. Clair County, in a forum non conveniens setting.” Id. ¶ 47 (Welch, J., dissenting).

¶ 8 Defendant appeals to this court. We granted the Illinois Association of Defense Trial Counsel leave to submit an amicus curiae brief in support of defendant. We granted Certainteed Corporation; Exxon Mobil Corporation; Ford Motor Company; General Electric Company; Riley Stoker Corporation; Rockwell Automation, Inc.; 3M Company; and Union Carbide Corporation leave to submit an amici curiae brief in support of defendant. We also granted the Illinois Trial Lawyers Association leave to submit an amicus curiae brief in support of plaintiff. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will be discussed in the context of our analysis of the issues.

¶ 9 II. ANALYSIS

¶ 10 Plaintiff alleges negligence under FELA, which applies to interstate railroads in their capacity as employers. See Koehler v. Illinois Central Gulf R.R. Co., 109 Ill.2d 473, 476, 94 Ill.Dec. 543, 488 N.E.2d 542 (1985). Preempting state tort remedies, FELA provides a statutory cause of action sounding in negligence for railroad employees' workplace injuries. Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 165, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007) (quoting 45 U.S.C. § 51 (2000)).1 Federal and state courts exercise concurrent jurisdiction under FELA. 45 U.S.C. § 56 (2000). The permission granted by Congress to bring FELA claims in state courts may be exercised in any state in which the carrier is found doing business. See Miles v. Illinois Central R.R. Co., 315 U.S. 698, 702, 705, 62 S.Ct. 827, 86 L.Ed. 1129 (1942). In the case at bar, it is undisputed that defendant does business in Mississippi and Illinois, among other states. Thus, FELA confers jurisdiction on both Mississippi and Illinois.

¶ 11 A. Forum Non Conveniens Principles

¶ 12 However, defendant contends that plaintiff's FELA action should be dismissed as forum non conveniens in favor of a Mississippi forum. The doctrine of forum non conveniens assumes that there is more than one forum with the power to hear the case. Gridley v. State Farm Mutual Automobile Insurance Co., 217 Ill.2d 158, 169, 298 Ill.Dec. 499, 840 N.E.2d 269 (2005); Foster v. Chicago & North Western Transportation Co., 102 Ill.2d 378, 381–82, 80 Ill.Dec. 746, 466 N.E.2d 198 (1984). The doctrine allows a court to decline jurisdiction of a case, even though it may have proper jurisdiction over the subject matter and the parties, if it appears that another forum can better serve the convenience of the parties and the ends of justice. Gridley, 217 Ill.2d at 169, 298 Ill.Dec. 499, 840 N.E.2d 269;Vinson v. Allstate, 144 Ill.2d 306, 310, 162 Ill.Dec. 43, 579 N.E.2d 857 (1991). Illinois courts can apply the doctrine of forum non conveniens to FELA cases. Missouri ex rel. Southern Ry. Co. v. Mayfield, 340 U.S. 1, 5, 71 S.Ct. 1, 95 L.Ed. 3 (1950); Foster, 102 Ill.2d at 383, 80 Ill.Dec. 746, 466 N.E.2d 198.

¶ 13 Forum non conveniens is applicable on both an interstate and intrastate basis. In other words, the doctrine may be applied not only where the choice is between forums in different states, but also where the choice is between forums in the same state. The same considerations of convenience and fairness apply in deciding the question of the forum for trial. Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 176, 278 Ill.Dec. 92, 797 N.E.2d 687 (2003) (collecting cases). Specifically, the focus of interstate forum non conveniens, at issue in the case at bar, is whether the case is being litigated in the most appropriate state. See Eads v. Consolidated R. Corp., 365 Ill.App.3d 19, 25, 301 Ill.Dec. 591, 847 N.E.2d 601 (2006); 3 Richard A. Michael, Illinois Practice § 14:1, at 220 (2d ed. 2011). In granting an interstate forum non conveniens motion, the action must be dismissed because an Illinois circuit court lacks the power to transfer the action to the court of another state. 3 Richard A. Michael, Illinois Practice § 14:1, at 220 (2d ed. 2011). The dismissal is conditioned on the plaintiff timely filing the action in the other forum; and the defendant accepting service of process from that court, and waiving any available statute of limitations defense. Ill. S.Ct. R. 187(c)(2) (eff. Aug. 1, 1986).2

¶ 14 “The doctrine of forum non conveniens is founded in considerations of fundamental fairness and sensible and effective judicial administration.” Gridley, 217 Ill.2d at 169, 298 Ill.Dec. 499, 840 N.E.2d 269. Although the doctrine has a long history, its general application crystalized following Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (194...

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