Robey v. Ford Motor Co., Docket No. 82982

• Decision Date: 20 February 1987
• Docket Number: Docket No. 82982
• Citation: 400 N.W.2d 610,155 Mich.App. 643
• Parties: Sandra L. ROBEY, Executrix of the Estate of Jessie Thomas Robey, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 610

400 N.W.2d 610

155 Mich.App. 643

Sandra L. ROBEY, Executrix of the Estate of Jessie Thomas

Robey, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.

Docket No. 82982.

Court of Appeals of Michigan.

Submitted Nov. 19, 1985.

Decided April 10, 1986.

Released For Publication Feb. 20, 1987.

Quinn, Borella & Stockton, P.C. (by Jerome G. Quinn), and Gromek, Bendure & Thomas (by Daniel J. Wright), Attorneys of Counsel, Detroit, for plaintiff-appellant.

Dickinson, Wright, Moon, Van Dusen & Freeman (by Robert S. Krause, Richard L. Caretti and William P. Shield, Jr.), Detroit, for defendant-appellee.

Before WAHLS, P.J., and R.B. BURNS and DODGE, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from a Wayne Circuit Court order granting defendant's motion to dismiss on the grounds of forum non conveniens. We reverse. The facts of this case are on all fours with those in Cray v. General Motors Corp., 389 Mich. 382, 207 N.W.2d 393 (1973), where the Supreme Court affirmed a lower court order denying the defendant's motion to decline jurisdiction. In light of the Court's holding that application of the doctrine of forum non conveniens should lie within the discretion of the trial judge, we would be loath to say that a judge could never decline jurisdiction when faced with facts similar to those in Cray. However, we would expect that the judge's decision would reveal some reason for distinguishing Cray. We cannot find such a reason on this case and, accordingly, would reverse and remand for trial.

When a party requests that a court decline jurisdiction based on the doctrine of forum non conveniens, there are two inquiries for the court to make: whether the forum is inconvenient and whether there is a more appropriate forum available. If there is not a more appropriate forum elsewhere, the inquiry ends and the court may not resist imposition of jurisdiction. If there is a more appropriate forum, the court still may not decline jurisdiction unless its own forum is seriously inconvenient.

In this case, the trial judge identified three reasons for declining jurisdiction: the accident occurred in Virginia, plaintiff resided in Virginia, and defendant was doing business in Virginia. These reasons, along with defendant's agreement to stipulate to jurisdiction in a Virginia court and to waive any statute of limitations, lead to the conclusion that a Virginia forum is available which, at least in some respects, has advantages over the Wayne Circuit Court. However, the judge's reasons do not appropriately address the inconvenience of his court as a forum. The fact that defendant was doing business in Virginia says nothing of the convenience or lack thereof of the Wayne Circuit Court. Indeed, Wayne County is defendant's principal place of business. The fact that plaintiff is a resident of Virginia is also of no moment; she has elected Wayne Circuit Court as her forum of choice.

That the accident occurred in Virginia does suggest that some of the Cray factors came into play. However, the trial judge did not address any of these factors and, on review of the record, we cannot find that any injustice would result from retention of jurisdiction in Wayne County. Plaintiff asserts that Michigan law should apply. See Olmstead v. Anderson, 145 Mich.App. 160, 377 N.W.2d 853 (1985). Plaintiff's suit alleges negligent design of the tractor occurring in Michigan; pretrial discovery on this claim would probably center in Wayne County. Plaintiff further claims that there were no eyewitnesses to the rollover and that she would be the only one testifying as to the circumstances surrounding the accident. We do not regard defendant's allegation that there may be other Virginia witnesses not subject to compulsory process in Michigan as sufficient in itself to support dismissal of plaintiff's action. The allegations are not supported by record evidence and are speculative at this time. Also, we regard the necessity of a view of the premises as unlikely in light of defendant's earlier removal of plaintiff's first action, filed in Virginia state court, to a Virginia federal court more than one hundred miles from the site of the accident.

In Cray, the Supreme Court referred to the commentary to Restatement Conflict of Laws 2d, Sec. 84, which included a corporation's principal place of business as an appropriate forum. Cray, supra, 389 Mich. at pp. 394-395, n. 2, 207 N.W.2d 393. Recently, a panel of this Court has stated that the doctrine of forum non conveniens is applicable only where, inter alia, neither party is a resident of the forum state. Duyck v. International Playtex, Inc., 144 Mich.App. 595, 602, 375 N.W.2d 769 (1985). At this time, we are hesitant to follow our colleagues on the Duyck panel and adopt the mandatory rule stated in that case. Nevertheless, the above citations suggest that it must be a truly exceptional case where the defendant's principal place of business would not be a convenient forum. This case so lacks of any exceptional factors that we can only conclude that the trial judge's decision was an abuse of discretion. Marrs v. Board of Medicine, 422 Mich. 688, 694, 375 N.W.2d 321 (1985), citing Spalding v. Spalding, 355 Mich. 382, 385, 94 N.W.2d 810 (1959).

Reversed and remanded for trial.

R.B. BURNS, J. (dissenting).

Plaintiff, Sandra L. Robey, executrix of the estate of Jessie Thomas Robey, deceased appeals from a Wayne Circuit Court order granting defendant Ford Motor Company's motion to dismiss on the grounds of forum non conveniens. Plaintiff's decedent was killed in Lunenberg County, Virginia, on October 19, 1982, when the Ford 4000 tractor he was driving allegedly overturned and crushed him. Plaintiff and her decedent, both at the time of the accident and at the present time, are residents of Virginia.

The instant case was filed in Wayne Circuit Court on October 18, 1984. At approximately the same time, an identical action was filed in Lunenberg County, Virginia. Defendant successfully removed that case to the United States District Court in Richmond, Virginia, approximately 125 miles away. Wishing to pursue the Michigan action, plaintiff requested voluntary dismissal without prejudice of the federal suit. However, by its January 11, 1985, order the federal district court granted dismissal with prejudice because plaintiff's two suits in different courts respecting the identical claim put defendant to unnecessary expense.

Defendant then moved to dismiss based on forum non conveniens in Wayne...