Finnegan v. Les Pourvoiries Fortier, Inc., s. 1-88-0370

• Decision Date: 28 September 1990
• Docket Number: 1-88-0382,Nos. 1-88-0370,1-88-0523 and 1-88-0553,s. 1-88-0370
• Citation: 205 Ill.App.3d 17,150 Ill.Dec. 186,562 N.E.2d 989
• Parties: , 150 Ill.Dec. 186 Mary Ann FINNEGAN, as Special Administrator of the Estate of John Finnegan, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee. Susan LASKY, as Special Administrator of the Estate of Richard R. Samson, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Special Administrator of the Estate of Joseph Sukzda, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee. Geraldine KEARNS, as Administrator of the Estate of Edward Kearns, Jr., Deceased, et al., Plaintiffs-Appellants, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 989

562 N.E.2d 989

205 Ill.App.3d 17, 150 Ill.Dec. 186

Mary Ann FINNEGAN, as Special Administrator of the Estate of John Finnegan, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee.

Susan LASKY, as Special Administrator of the Estate of Richard R. Samson, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee.

AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as

Special Administrator of the Estate of Joseph

Sukzda, Deceased, Plaintiff-Appellant, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee.

Geraldine KEARNS, as Administrator of the Estate of Edward

Kearns, Jr., Deceased, et al., Plaintiffs-Appellants, v. LES POURVOIRIES FORTIER, INC., et al., Defendant-Appellee.

Nos. 1-88-0370, 1-88-0382, 1-88-0523 and 1-88-0553.

Appellate Court of Illinois First District, Second Division.

Sept. 28, 1990.

Rehearing Denied Nov. 16, 1990.

John J. Kennelly, Chicago (Joseph A. Bosco, Kevin M. Forde, John J. Kennelly, of counsel), for plaintiffs-appellants.

Corboy & Demetrio, P.D., Chicago (Philip H. Corboy, Kenneth C. Miller, Joy L. Sparling, of counsel), for plaintiff-appellant, Robert J. Langkamp.

Arvey, Hodes, Costello & Burman, Chicago (George L. Grumley, Rosemarie J. Guadnolo, Thomas F. Sax, of counsel), for plaintiff-appellant, Geraldine Kearns, et al.

Haskell & Perrin, Chicago (Donald M. Haskell, Michael J. Sehr, Andrew Kochanowski, of counsel), for defendant and cross-defendant-appellee, Les Pourvoiries Fortier, Inc.

Justice SCARIANO delivered the opinion of the court:

These consolidated appeals arise from an airplane crash on September 30, 1985, in Quebec, Canada, in which all persons aboard perished, including the pilot and six Illinois residents. The appeals are taken from the dismissal of the actions for damages brought by the estates of four of the deceased Illinoisans.

At the time of the accident, the victims were enroute from a caribou hunting trip in northern Quebec to the airport in Schefferville, Quebec. Plaintiffs filed wrongful death actions in circuit court against Les Pourvoiries Fortier, Inc., (Fortier, Inc.) as owner and operator of the aircraft, alleging negligence in its operation and maintenance. The complaints also alleged that Wyco Enterprises of Illinois, Inc., (Wyco) and Sheila Wyer (Mrs. Wyer), as administrator of the estate of Joseph T. Wyer (Wyer), deceased, were negligent in the planning and handling of the trip of plaintiffs' decedents. Mrs. Wyer crossclaimed in the other plaintiffs' suits against Fortier, Inc., for the wrongful death of her husband.

Fortier, Inc., filed a Special and Limited Appearance and a Motion to Quash Service and Dismiss, claiming that the service of process on it was improper and that the court lacked in personam jurisdiction. The circuit court granted defendant's motion, and dismissed plaintiffs' complaints; the court later certified its order pursuant to Supreme Court Rule 304(a), and plaintiffs filed timely notices of appeal.

The following issues are presented for our review: (1) whether the circuit court correctly determined that defendant was not present or "doing business" in Illinois through Wyer and Wyco and therefore is not subject to the in personam jurisdiction of Illinois courts under the "doing business" doctrine; (2) whether the circuit court correctly determined that defendant is not subject to the in personam jurisdiction of Illinois courts under the Illinois "long-arm statute" (Ill.Rev.Stat.1989, ch. 110, par. 2-209(a)(1)); and (3) whether the circuit court properly quashed service of process. We affirm.

In support of its motion to quash service of process and to dismiss, defendant filed two affidavits of Albert Fortier (Fortier), owner and manager of Fortier, Inc.. In response, plaintiffs filed two affidavits and the deposition of Joseph Bartuch (Bartuch), an affidavit of Mrs. Wyer and documentary evidence consisting in large part of correspondence between defendant and Wyco. With the exception of three factual inconsistencies which will be addressed later, the facts are not in dispute.

Fortier, Inc., was a Canadian corporation which owned and operated Wedge Hills Lodge, a small hunting and fishing facility near Schefferville, Quebec, about 150 miles northwest of Montreal, in a subarctic, French-speaking region of Canada. The company organized seasonal fishing and hunting expeditions, providing transportation for parties on a Beech-18 airplane from Schefferville to the lodge, which is nearly inaccessible by other means. Fortier, a French-Canadian, owned and managed the business.

Wyco was an Illinois corporation which specialized in the outdoors sporting business. Before the fatal crash, its only employee and sole shareholder was Wyer, a Chicago-area professional outdoors sportsman. Wyer produced and hosted a half-hour television hunting and fishing program called the "Outdoors Sportsman," which aired regularly from 1978 to 1985 on channel 26 in Chicago. He sold time for commercials advertising a variety of outdoors-related products, services and lodges. To gather material for the program, Wyer would visit various hunting lodges in northern United States and Canada, and was generally paid a commission by them if he brought back a group of hunters.

Wyer first contacted Fortier when he and Bartuch, a photographer, travelled to Wedge Hills Lodge for a week in August 1984 to make a videotape for Wyer's television show. During their stay, Wyer and Bartuch had a total of four conversations with Fortier, who participated through an unidentified French-English translator.

One of the conversations concerned Wyer's bringing his clients to the lodge in the next caribou hunting season. He asked Fortier about the number of people the lodge could accommodate and specific available hunting dates; they also discussed Fortier's prices. Fortier said he would give Wyer a 15 percent finder's fee for any hunters Wyer would bring to the lodge. The conversation concluded with an understanding that Fortier would provide Wyer with available dates that Wyer would pass along to his clients for a caribou hunt at the lodge in the fall of 1985. During the course of other conversations, Wyer told Fortier about the television coverage the lodge would get on Wyer's show. Nothing that came of this meeting was reduced to writing.

Between October 1984, when Wyer first visited Wedge Hills Lodge, and September 1985, when Wyer returned to the lodge with a group of hunters, Wyer and Fortier exchanged seven letters and several telephone calls. In the first letter, dated October 17, 1984, Wyer thanked Fortier for the opportunity to film at Fortier's lodge. In response to a telephone call from Wyer, on October 31, 1984, the lodge's secretary confirmed by letter Wyer's bookings for several persons for a week's stay at the lodge on three separate hunting dates. The third correspondence was a letter from Wyer to Fortier on January 29, 1985, in which Wyer provided a list of prospective clients for the September 1985 expedition and a deposit on behalf of his group in the form of a check drawn on a bank in London, Ontario, where Wyer had previously opened an account. This letter also mentioned that Wyer's television show featured film footage of the lodge and that a videotape was being sent to Fortier. In the fourth letter, on February 12, 1985, Fortier acknowledged receipt of the deposit and confirmed Wyer's reservations. In response to a call from Wyer, on July 2, 1985, the lodge's secretary sent Wyer the names of two Canadian hunters with whom Wyer had hunted at the lodge. In a sixth letter, on July 31, 1985, Wyer sent Fortier a check for $23,000 Canadian as a further downpayment for the impending hunting trips. Fortier had scheduled ten hunters, including Wyer, for September 23, 1985, and twelve hunters for September 25, 1985. Wyer's letter indicated that he did not intend to pay for his own trip. However, in the seventh letter, on August 6, 1985, the lodge's secretary made it clear to Wyer, in behalf of Fortier, that since Wyer was being paid a 15 percent commission, he would have to pay for his own trip. Wyer later did so. A check dated September 24, 1985, for $6,900 Canadian represented the balance owed Fortier. Again, the check was drawn on Wyer's account at the London, Ontario, bank.

The fee of $2,000 Canadian per hunter charged by Fortier did not include transportation to and from Schefferville. Wyer charged each of his clients $2,100 for the same package. Wyer made all of the necessary travel arrangements for his clients from Chicago to Schefferville and back.

After his initial visit to Wedge Hills Lodge, Wyer engaged in various activities in Illinois relating to Fortier, Inc. At a booth he sponsored at the Outdoors Show in Chicago in February 1985, Wyer distributed some promotional literature he had received from Fortier describing the lodge and prices. A Wyco brochure entitled "Hunting" advertised five different tours that Wyer planned in 1985, including the trip to Wedge Hills Lodge. A Wyco brochure entitled "Trophy Caribou Black Bear Ptarmigan" described the lodge and gave a tour price including air fares from Chicago. Bartuch testified as to an "informational" commercial advertising Wedge Hills Lodge which aired an unknown number of times on Wyer's television show. The commercial stated that Wyer and Wedge Hills Lodge had "joined forces" to provide the hunting package. However, in his affidavit Fortier stated that he had neither authorized nor paid for that commercial. Finally, Wyer made all of the travel arrangements for himself and his clients for the September 1985 tours. It was on one of these tours that the airplane crash giving rise to this litigation occurred.

The activities of Fortier, Inc., are almost exclusively centered in Canada. All of the company's promotional literature listed only a Canadian telephone number. Its only place of business...