Volkswagen Ins. Co. v. Whittington

• Decision Date: 23 March 1978
• Docket Number: No. 77-1008,77-1008
• Citation: 58 Ill.App.3d 621,374 N.E.2d 954,16 Ill.Dec. 179
• Parties: , 16 Ill.Dec. 179 VOLKSWAGEN INSURANCE COMPANY, a corporation, Plaintiff, v. Edwin G. WHITTINGTON, Sheila Whittington, Richard E. Munsterman and Allstate Insurance Company, a corporation, Defendants. Sheila WHITTINGTON, Defendant and Third-Party Plaintiff-Appellee, v. Harold J. O'CONNELL and Dixie Beer Distributors, Inc., a Kentucky Corporation, Third-Party Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 954

374 N.E.2d 954

58 Ill.App.3d 621, 16 Ill.Dec. 179

VOLKSWAGEN INSURANCE COMPANY, a corporation, Plaintiff, v. Edwin G. WHITTINGTON, Sheila Whittington, Richard E.

Munsterman and Allstate Insurance Company, a

corporation, Defendants.

Sheila WHITTINGTON, Defendant and Third-Party Plaintiff-Appellee, v. Harold J. O'CONNELL and Dixie Beer Distributors, Inc., a

Kentucky Corporation, Third-Party Defendants-Appellants.

No. 77-1008.

Appellate Court of Illinois, First District, Fifth Division.

March 23, 1978.

[16 Ill.Dec. 180] James H. Canel, Chicago, for third party defendants-appellants.

WILSON, Justice:

This is an interlocutory appeal pursuant to Supreme Court Rule 308 (Ill.Rev.Stat.1975, ch. 110A, par. 308) from an order denying a motion to quash service of process on the third party defendants, Harold J. O'Connell and Dixie Beer Distributors, Inc. (hereinafter "Dixie"), and identifying the following question of law for our review: whether the third party defendants submitted to jurisdiction conferred by section 17(1)(a) of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 17(1)(a)) through transacting business within Illinois even though the accident and injuries alleged arose out of the transaction of business outside of the State? We reverse and remand with directions.

Volkswagen Insurance Company (hereinafter "Volkswagen") issued an automobile insurance policy to Edwin G. Whittington on July 21, 1974. Sheila Whittington, Edwin's daughter, was involved in an accident that same day while driving her father's car in Indiana. Subsequently Edwin and Sheila filed a claim with Volkswagen under the uninsured motorist provisions of Edwin's policy. In the claim Sheila alleged that her father's car was struck by a hit-and-run vehicle whose identity was unknown and unascertainable. On February 2, 1976, Volkswagen filed an amended complaint for a declaratory judgment against the Whittingtons. In this complaint Volkswagen alleged that Sheila lost control, travelled across a median strip and collided with an oncoming vehicle driven by Richard E. Munsterman and insured by Allstate Insurance Company. From these allegations Volkswagen concluded that Sheila's injuries did not result from contact with an uninsured motor vehicle and that the uninsured motorist provisions of Edwin's policy are inapplicable. In an answer to the amended complaint Sheila alleged that she was hit by a truck traveling in the same direction and denied that she struck Munsterman's auto.

Several months later Sheila filed a third party complaint against O'Connell and Dixie. In this complaint Sheila alleged that O'Connell drove the truck which struck her while he was in the scope of his employment by Dixie, who either owned, or leased, the truck. Although the record does not reflect it, O'Connell and Dixie admit on Sheila Whittington moved for denial of the motion to quash service of process and an affidavit signed by one of her attorneys accompanied her motion. The third party defendants subsequently filed a memorandum of law in support of their motion. Both documents refer to a discovery deposition in which O'Connell stated that he averaged six or seven trips to Illinois each month and that while his ultimate destination on the July 21, 1974, trip was Wisconsin, his route took him through Illinois. O'Connell further stated in the deposition that Dixie employed other drivers who made trips to Illinois and had employed up to thirteen or fourteen drivers at one point in time, but neither that point nor the number of drivers normally employed by Dixie were specified. Additionally, it is not clear from O'Connell's deposition how many trips to Illinois, and how many trips through Illinois to Wisconsin, Dixie's other drivers averaged each month or how many of them were on Illinois roads at any given time. Finally, neither O'Connell's deposition nor the aforementioned affidavits indicate that Dixie distributed beer in Illinois and Jackson expressly stated that Dixie does not distribute outside of Kentucky. Nevertheless, on the basis of O'Connell's deposition and the affidavits before it the court below found during a hearing on the motion to quash that Dixie had thirteen or fourteen drivers in Illinois at various times and that Dixie purchased beer in Illinois for delivery in Illinois. After the hearing the court entered an order denying the motion to quash service of process on the third party defendants. In the same order the court identified the aforementioned question of law. The third party defendants then filed an application for leave to appeal pursuant to Supreme Court Rule 308 from the interlocutory order denying their motion and identifying the question of law.

[16 Ill.Dec. 181] appeal that they were subsequently served with summons in Kentucky. Thereafter they filed a special and limited appearance, a motion to quash service of process and an affidavit in support of the motion. The affiant, Joseph D. Jackson, stated that he was Dixie's general manager and had held that position since 1973. He described Dixie as a wholesale beer distributor in Kentucky and added that Dixie does not conduct any business in other states with the exception of purchasing beer in Wisconsin and Illinois and [58 Ill.App.3d 623] transporting it via truck to Kentucky. He further stated that O'Connell was not involved in the accident in question and explained that O'Connell merely observed the accident while traveling through Indiana en route to Wisconsin for a load of beer.

We agreed with the court below that there was a substantial basis for a difference of opinion over the question and that an immediate appeal from the order could materially advance the ultimate termination of the litigation. Therefore we granted leave to appeal.

OPINION

Section 17 of the Civil Practice Act (Ill.Rev.Stat.1975, ch. 110, par. 17), commonly referred to as the Illinois Long Arm Statute, extends the personal...