Wakehouse v. Goodyear Tire & Rubber Co.

• Citation: 818 N.E.2d 1269,289 Ill.Dec. 66,353 Ill. App.3d 346
• Decision Date: 18 November 2004
• Docket Number: No. 3-03-0910, No. 3-03-0913., No. 3-03-0885, No. 3-03-0884, No. 3-03-0904
• Parties: Becky S. WAKEHOUSE, Special Administratrix of the Estate of Gary D. Wakehouse, Deceased, on behalf of decedent and the surviving next of kin of decedent, Plaintiff-Appellee, v. The GOODYEAR TIRE & RUBBER COMPANY, a Corporation; Titan Wheel Corporation, a Corporation; Titan International, Inc., a Corporation; T.D. Wheel Company of Virginia, Inc., a Corporation; Caterpillar, Inc., a Corporation; and Caterpillar Tractor Co., a Corporation, Defendants-Appellants (Leslie P. Sorenson, Kay Sorenson and Virgil Sorenson, individually and d/b/a Sorenson Tire Store and Sorenson's Tire Store, a general partnership, Third-Party Defendants-Appellants).
• Court: United States Appellate Court of Illinois

818 N.E.2d 1269

353 Ill. App.3d 346

289 Ill.Dec. 66

Becky S. WAKEHOUSE, Special Administratrix of the Estate of Gary D. Wakehouse, Deceased, on behalf of decedent and the surviving next of kin of decedent, Plaintiff-Appellee, v. The GOODYEAR TIRE & RUBBER COMPANY, a Corporation; Titan Wheel Corporation, a Corporation; Titan International, Inc., a Corporation; T.D. Wheel Company of Virginia, Inc., a Corporation; Caterpillar, Inc., a Corporation; and Caterpillar Tractor Co., a Corporation, Defendants-Appellants (Leslie P. Sorenson, Kay Sorenson and Virgil Sorenson, individually and d/b/a Sorenson Tire Store and Sorenson's Tire Store, a general partnership, Third-Party Defendants-Appellants).

Nos. 3-03-0884, 3-03-0885, 3-03-0904, 3-03-0910, 3-03-0913.

Appellate Court of Illinois, Third District.

November 18, 2004.

Craig Levien, Jean Dickson Feeney, Betty, Neuman & McMahon, Davenport, IA, for Leslie P. Sorenson in No. 3-03-0884.

Patrick S. O'Brien, C. Marshall Friedman, P.C., St. Louis, MO, James R. Carter, Carter Law offices, Peoria, for Becky S. Wakehouse in No. 3-03-0884.

Delmer R. Mitchell, Brett Gorman, David G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, for Titan Wheel Corporation in No. 3-03-0884.

Alyssa M. Campbell, Thomas H. Neuckranz, Edward R. Moor, Lloyd E. Williams, Jr., Williams, Montgomery & John, Ltd., Chicago, for Goodyear Tire & Rubber Company in No. 3-03-0884.

Steven P. Sanders, Williams, Venker & Sanders, LLC, St. Louis, MO, for Appellee in No. 3-03-0884. James J. Manning, Heyl, Royster, Voelker & Allen, Peoria, for Caterpillar Tractor Company in No. 3-03-0884.

Alyssa M. Campbell, Thomas H. Neuckranz, Edward R. Moor, Lloyd E. Williams, Jr., Barry L. Kroll (argued), Williams, Montgomery & John, Ltd., Chicago, for Goodyear Tire & Rubber Company in No. 3-03-0910.

Brett Gorman, Delmer R. Mitchell, Melinda S. Madison, David G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, for Titan International, Inc., Titan Marketing Services, Inc., Titan Wheel Corporation of Virginia in No. 3-03-0910.

Lisa A. Larkin, Steven P. Sanders, Williams, Venker & Sanders, LLC, St. Louis, MO, for Caterpillar Tractor Company, Caterpillar, Inc. in No. 3-03-0910.

Jean Dickson Feeney, Betty, Neuman & McMahon, Davenport, IA, for Kay Sorenson, Leslie P. Sorenson, Sorenson's Tire Store in No. 3-03-0910.

Patrick S. O'Brien, Daniel Bennett, Newton G. McCoy (argued), C. Marshall Friedman, P.C., St. Louis, MO, James R. Carter, Carter Law Offices, Peoria, for Becky S. Wakehouse in No. 3-03-0910.

James J. Manning, Heyl, Royster, Voelker & Allen, Peoria, for Appellee in No. 3-03-0910.

Heather Langlois (argued) St. Louis, MO, for Appellant in No. 3-03-0910.

Justice SLATER delivered the opinion of the court:

In these consolidated appeals, defendants Goodyear Tire & Rubber Company, Titan Wheel Corporation, Titan International, Inc., T.D. Wheel Company of Virginia, Inc., Caterpillar, Inc., Caterpillar Tractor Company, and third-party defendants Leslie Sorenson, Kay Sorenson, Virgil Sorenson and Sorenson's Tire Store sought leave to appeal under Supreme Court Rules 306 (166 Ill.2d R. 306) and 308 (155 Ill.2d R. 308) from rulings of the circuit court denying defendants' motions to dismiss based on forum non conveniens. Appeal No. 3-03-0910 presents an issue of first impression regarding a plaintiff's ability to refile a case in Illinois after a dismissal under the interstate branch of forum non conveniens. Appeal No. 3-03-0884 involves application of familiar forum non conveniens principles to plaintiff's choice of forum.

Background

On February 6, 1997, Gary D. Wakehouse was killed in Burt County, Nebraska, while changing a tire on a Caterpillar road grader. According to plaintiff's complaint, the wheel rim of the road grader separated, causing the side ring to strike Wakehouse. Plaintiff filed a complaint on August 15, 1997, in St. Clair County, Illinois, alleging product liability and negligence claims. The defendants subsequently filed a motion to dismiss based on improper venue and on the grounds of interstate forum non conveniens. The circuit court denied the motion and, after granting defendants' Rule 306 petition for leave to appeal, the Fifth District Appellate Court affirmed in a Rule 23 order entered on July 19, 2001. Defendants then filed a petition for leave to appeal to the Illinois Supreme Court under Rule 315. 177 Ill.2d R. 315. The supreme court entered a supervisory order vacating the appellate court's order and remanding for reconsideration in light of Vinson v. Allstate, 144 Ill.2d 306, 162 Ill.Dec. 43, 579 N.E.2d 857 (1991). The appellate court, in a second Rule 23 order issued on November 27, 2001, ruled that the trial court had abused its discretion in denying defendants' motion to dismiss. Wakehouse v. Titan Wheel Corp., No. 5-99-0749, 325 Ill.App.3d 1192, 284 Ill.Dec. 681, 810 N.E.2d 334 (2001) (unpublished order under Supreme Court Rule 23). The court found that either Burt County, Nebraska, or Onawa, Iowa, where the decedent resided and was employed, would be a more convenient forum. Thereafter, the trial court dismissed the case on February 13, 2002, in an agreed order which provided, pursuant to Supreme Court Rule 187, that defendants would accept service of process if plaintiff refiled in another forum within six months. See 134 Ill.2d R. 187(c)(2)(i). Defendants also agreed to waive any statute of limitations defense. See 134 Ill.2d R. 187(c)(2)(ii).

On July 30, 2002, plaintiff refiled her case in Peoria County, Illinois. Peoria is the world headquarters and principal place of business of defendant Caterpillar. Its research and design facilities are located nearby. In addition, the principal places of business of two of the Titan defendants are located in Quincy, Illinois, about 130 miles from Peoria. The defendants filed motions to dismiss, asserting that the previous dismissal on the grounds of interstate forum non conveniens precluded plaintiff from refiling in any Illinois county. These motions were denied by the Peoria County circuit court, which certified the following question for interlocutory appeal under Rule 308:

"Is the trial court correct in its ruling that dismissal pursuant to Supreme Court rule 187(c)(2) — on the grounds of interstate forum non conveniens — of a suit, then pending in one county in the State of Illinois, does not preclude the filing of the suit in another county in the State of Illinois?"

Thereafter, the circuit court ruled on an additional grounds for dismissal which defendants had asserted in their motions. Defendants contended, as they had in the circuit court of St. Clair County, that plaintiff's complaint should be dismissed on the basis of interstate forum non conveniens, again citing Nebraska and Iowa as more convenient forums. The Peoria circuit court denied defendants' motions on October 8, 2003, and defendants filed a petition for leave to appeal pursuant to Rule 306(a)(2). 166 Ill.2d R. 306(a)(2). This court subsequently granted leave to appeal under Rule 308 but denied the Rule 306 petition. Defendants then petitioned the Illinois Supreme Court for leave to appeal. In a supervisory order, the supreme court ordered this court to grant the Rule 306 petition and address the forum non conveniens issue on the merits, if appropriate, only after ruling on the Rule 308 issue. Thus, after numerous rulings by two different circuit courts, two districts of the appellate court, and the Illinois Supreme Court, it has yet to be determined, more than seven years after it was initially filed, where this case will be tried. We find that it should be in Nebraska or Iowa, not in Peoria County, Illinois.

Appeal No. 3-03-0910

We first consider the question certified by the circuit court, whether a dismissal on the grounds of interstate forum non conveniens bars plaintiff from refiling her suit in another Illinois county. As this concerns a question of law, we review the circuit court's decision de novo. Feltmeier v. Feltmeier, 207 Ill.2d 263, 278 Ill.Dec. 228, 798 N.E.2d 75 (2003).

Scope of the prior dismissal

Defendants maintain that a dismissal on the basis of interstate forum non conveniens constitutes a finding that the entire State of Illinois is an inconvenient forum, not just St. Clair County. Therefore, argue defendants, plaintiff is prohibited from relitigating that issue by filing her lawsuit in another Illinois county.

It is true, of course, that forum non conveniens has two potential applications: interstate and intrastate. "The interstate branch of forum non conveniens considers whether Illinois is an appropriate state in which to litigate the controversy, and the intrastate branch of the doctrine considers whether the case is being litigated in the most convenient county within Illinois." Bird v. Luhr Brothers, Inc., 334 Ill.App.3d 1088, 1091, 269 Ill.Dec. 53, 779 N.E.2d 907, 911 (2002); see also Lambert v. Goodyear Tire and Rubber Co., 332 Ill.App.3d 373, 265 Ill.Dec. 771, 773 N.E.2d 133 (2002). In deciding an interstate forum non conveniens motion, a plaintiff's home forum is the state in which she lives, not the specific county of residence. Bird, 334 Ill.App.3d 1088, 269 Ill.Dec. 53, 779 N.E.2d 907. Nevertheless, a circuit court ruling on an interstate forum non conveniens motion does not generally consider and weigh any connections the litigation may have to every county in Illinois in which venue may be proper. Instead, the court compares the county in which suit has been filed to the specific courts in other states suggested as alternative forums by the defendants.

For example, the analysis employed by the appellate court in its second Rule 23 order emphasizes the strength of the connections to Iowa and Nebraska versus the lack of connection to St. Clair County:

"Here, plaintiff and decedent were residents of Onawa, Iowa. Decedent's place of employment was located in Onawa, Iowa, so records concerning his employment

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