Elling v. State Farm Mutual Automobile Insurance Co.

No. 1--95--0530

ERVIN J. ELLING,                        )  Appeal from the
                                        )  Circuit Court of
               Plaintiff-Appellee,      )  Cook County.          
                                        )
                    v.                  )
                                        )
STATE FARM MUTUAL AUTOMOBILE INSURANCE  )
COMPANY and ELLERBE BECKET, INC.,       )  Honorable   
                                        )  Jennifer Duncan-Brice,
               Defendants-Appellants.   )  Judge Presiding.


     JUSTICE BURKE delivered the opinion of the court:
     Defendants State Farm Mutual Automobile Insurance Company
(State Farm) and Ellerbe Becket, Inc. (Becket) appeal from an order
of the circuit court of Cook County denying their motion to
transfer venue pursuant to the doctrine of intrastate forum non
conveniens.  On appeal, defendants contend that the trial court
abused its discretion because it failed to properly consider the
relevant factors under this doctrine.  For the reasons set forth
below, we affirm.
     On February 5, 1993, plaintiff Ervin Elling was working in a
building at a construction site in Bloomington, McLean County,
Illinois, when he allegedly fell through a hole in the second floor
decking.  As a result of the fall, plaintiff broke both his legs. 
On November 9, 1993, plaintiff, who resides in Tazewell County,
Illinois, filed a two-count complaint in the circuit court of Cook
County against State Farm and Becket, as well as Ozark Steel
Fabricators, Inc. (Ozark), Hanson Engineering, Inc., George Hyman
Construction Company and Cordeck Sales, Inc. (Cordeck),[fn1] based
on negligence and violation of the Structural Work Act.  State
Farm, Becket and Cordeck filed motions to transfer venue from Cook
County to McLean County pursuant to the doctrine of forum non
conveniens and Illinois Supreme Court Rule 187 (134 Ill. 2d R.
187(a)), arguing that most of the witnesses resided in or around
McLean County and that the events leading to plaintiff's injuries
occurred in McLean County.  Ozark also objected to Cook County as
a forum.[fn2]  On September 6, 1994, the trial court denied the
motions based on its determination that defendants failed to make
an affirmative showing as to the inconvenience of Cook County as a
forum.  More specifically, the court stated:  
               "*** Let me tell you on these forum non
          conveniens cases what I think is key and that
          I don't see here *** what Schoon v. Hill says
          *** is that you've got to show me how it's
          inconvenient *** you haven't met your burden."
               State Farm and Becket filed a motion for reconsideration, in
which Cordeck joined.   On January 11, 1995, the trial court denied
the motion, again stating that defendants had not shown any
inconvenience, and commented that five of the six defendants had
offices and/or registered agents in Cook County and only four of
the six defendants joined in the motion to transfer.  State Farm
and Becket (defendants) appeal from the order denying their motion
for reconsideration.
     Defendants contend that the private and public factors,
applicable in determining whether to transfer venue pursuant to the
doctrine of forum non conveniens, strongly favor transfer of the
case from Cook County to McLean County.  Defendants further argue
that the trial court erred in denying their motion to reconsider by
improperly relying on the fact that five of the six defendants had
offices and/or agents in Cook County and that only four of the six
defendants moved to transfer venue.
     "The forum non conveniens doctrine is premised on convenience
***, and applies when convenience, fairness and efficient judicial
administration demand that a trial be held in a forum which bears
a relationship to the litigation."  Bjurstrom v. Commonwealth
Edison Co., 144 Ill. App. 3d 743, 746, 494 N.E.2d 801 (1986).  A
reviewing court will not disturb a circuit court's granting or
denying of a forum non conveniens motion absent an abuse of
discretion.  Meyers v. Bridgeport Machines Division of Textron,
Inc., 113 Ill. 2d 112, 117-18, 497 N.E.2d 745 (1986).  The doctrine
of forum non conveniens presupposes that more than one court exists
with authority to hear the case.  Weaver v. Midwest Towing, Inc.,
116 Ill. 2d 279, 287, 507 N.E.2d 838 (1987).
     Under the forum non conveniens doctrine, "the private
interests of the litigants[,] as well as the public interest must
be balanced by the circuit court in ruling on a forum non
conveniens motion."  Schoon v. Hill, 207 Ill. App. 3d 601, 605, 566 N.E.2d 718 (1991).  A court may deny jurisdiction in order to
better serve the convenience of the litigants and to reach justice. 
Weaver, 116 Ill. 2d  at 287.  The private interest factors include:
availability of an alternate forum, access to sources of proof,
accessibility of witnesses, convenience of the parties, and
possibility of viewing the premises, if appropriate.  Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839,
(1947); Torres v. Walsh, 98 Ill. 2d 338, 351, 456 N.E.2d 601
(1983).  The public interest factors include: the relative court
congestion, local interest in the case, and the burden of jury duty
on citizens in an unrelated forum.  Bland v. Norfolk & Western Ry.
Co., 116 Ill. 2d 217, 224, 506 N.E.2d 1291 (1987).  These factors
must strongly favor the defendant in order to override the
plaintiff's statutory right to select the forum.  Torres, 98 Ill. 2d  at 351.  However, this right is accorded less deference when the
plaintiff does not reside in the county he has chosen (Washington
v. Illinois Power Co., 144 Ill. 2d 395, 400, 581 N.E.2d 644
(1991)), and the situs of the injury is not located in the chosen
forum (Peile v. Skelgas, Inc., 163 Ill. 2d 323, 338, 645 N.E.2d 184
(1994)).  
     We find Schoon dispositive of the case at bar.  In Schoon, the
plaintiff brought an action in Cook County against his doctor and
the manufacturer of a drug which he used, alleging claims of
negligence, medical malpractice and products liability.  The
plaintiff did not reside in Cook County, nor was the situs of the
injury in Cook County.  The defendant doctor filed a third-party
action against the pharmacy that had sold the drug to the
plaintiff.  The pharmacy subsequently moved to transfer the case
from Cook County to another county of its place of business or
where the doctor resided and practiced pursuant to the doctrine of
forum non conveniens.  In support of its motion, the pharmacy
offered the plaintiff's answers to the defendants' interrogatories,
arguing that "a majority of potential witnesses" resided outside of
Cook County, the sources of proof were all outside of Cook County
and that Cook County lacked any significant factual connection to
the case.  (Emphasis added.)  Schoon, 207 Ill. App. 3d at 607.  The
trial court denied the pharmacy's motion to transfer on a
timeliness basis; the case had been in the trial court for four
years before the pharmacy moved for a transfer to another forum.  
     In affirming the trial court, the Schoon court concluded that
the the pharmacy failed "to show how it or any of the other parties
*** [would] be inconvenienced by the Cook County forum."  Schoon,
207 Ill. App. 3d at 607.  The Schoon court further stated, with
respect to the private interest factors, that the pharmacy failed
to offer anything, other than the defendants' interrogatories, to
show that the hospitals and doctors listed therein had any evidence
which the pharmacy would need to use in its defense.  The pharmacy
further failed to show "which witnesses would actually be called to
support its defense" and failed to "indicate what the testimony of
potential witnesses would be, how their testimony would impact the
defense or whether or not their depositions could be used
successfully at trial."  (Emphasis added.)  Schoon, 207 Ill. App.
3d at 608, citing Weaver, 116 Ill. 2d 279, 289.  The Schoon court
further emphasized that the pharmacy "did not even provide the
names and addresses of its own employees who had knowledge about
the case and who would testify at trial."  Schoon, 207 Ill. App. 3d
at 608.  In summary, the Schoon court stated that the pharmacy's
"motion states only a conclusion and does not set out any facts to
show that other forums would be more convenient for trial than Cook
County."  207 Ill. App. 3d at 608.
     With respect to the public factors, the Schoon court found
that the pharmacy failed to offer evidence as to the condition of
the dockets of the courts in counties other than Cook and, while
agreeing that two other counties had an interest in resolving the
litigation, the court stated that it could not conclude that simply
because those counties had an interest in the case that the trial
court abused its discretion in denying the pharmacy's motion to
transfer.  The Schoon court further noted:
               "The role of this court is not to
          substitute its judgment for that of the
          circuit court, or even to determine whether
          the circuit court exercised its discretion
          'wisely.'  [Citations.]  Rather, our task is
          to determine if the circuit court abused its
          discretion; in the absence of an abuse of
          discretion, the decision of the circuit court
          in granting or denying a forum non conveniens
          motion will not be disturbed on review. 
          [Citation.]"  207 Ill. App. 3d at 609.
          The Schoon court held that the pharmacy failed to sustain its
burden in support of its motion to transfer, and stated that the
motion was "perfunctory, at best."  207 Ill. App. 3d at 609.     
     In the present case, defendants, in similar fashion as the
defendant pharmacy in Schoon, merely alleged that 22 of 23
occurrence witnesses live in or around McLean County (Champaign,
Peoria, Tazewell counties), only one lives within 100 miles of Cook
County, and only one of the 10 physicians and/or medical
institutions that treated plaintiff is located within Cook County,
while the others are located closer to McLean than to Cook County. 
Defendants failed, however, to indicate in their motions to
transfer and to reconsider the "substance and necessity" of any
witnesses or how they would be inconvenienced if required to appear
in Cook County.  Nor did defendants make any showing "as to what
evidence would be more difficult to bring or obtain in Cook
County."  Moreover, it is significant that these 23 witnesses are,
like the witnesses in Schoon, potential witnesses, and defendants
here failed to indicate how their testimony might impact on the
defense.  Additionally, as in Schoon, defendants in this appeal
failed to even name their own employees who had knowledge of the
case and who might be called to testify at trial, and did not list
the other defendants and their witnesses who are located in other
states across the country:  Becket (Minnesota), George Hyman
Construction Company (Maryland), Ozark (Missouri) and Cordeck
(Wisconsin).  Thus, the list of witnesses was incomplete and simply
speculative.
     We further observe, according to the record, that State Farm
has over 100 offices in Cook County and George Hyman Construction
Company and Becket also have offices in Chicago, as well as having
registered agents in Chicago.  Thus, defendants' argument that
plaintiff's case has no connection to Cook County is inaccurate. 
Additionally, the fact that defendants have offices and/or agents
in Cook County is not an irrelevant factor, as defendants contend,
in determining a more convenient forum; it is one more fact
supporting plaintiff's choice of forum.  We further briefly observe
that defendants' argument, that the presence of a defendant's
office and/or registered agent in the plaintiff's chosen forum
cannot be considered in a court's analysis in a forum non
conveniens proceeding, is without merit.  Defendants here rely on
Bjurstrom for this proposition.  In Bjurstrom, the trial court
denied the defendant's forum non conveniens motion to transfer
venue from Cook County to Rock Island County.  In reversing the
trial court, the Bjurstrom court did in fact consider the
defendant's place of business, which was both in Rock Island County
and in Cook County, as a factor in determining whether to transfer
the case, and found that the fact that the defendant "merely" did
business in Cook County was, standing alone, an inadequate reason
to deny the defendant's motion to transfer the case to Rock Island
County.
     We also find without merit defendants' argument that the trial
court improperly relied on the fact that only four of the six
defendants joined in the motion for transfer.  In support of their
argument, defendants rely on Schoon.  The Schoon court, however, in
deciding the correctness of the trial court's decision regarding
the timeliness of a later-joined defendant's forum non conveniens
motion to transfer, stated that "[a] later joined party [defendant]
should not be penalized for another defendant's failure to bring a
forum non conveniens motion" (Schoon, 207 Ill. App. 3d at 606); the
Schoon court simply did not state or suggest, as defendants here
argue, that "one defendant's failure to move to transfer should not
be interpreted as an assertion as to the convenience or
inconvenience of the plaintiff's chosen forum to that defendant." 
(Emphasis added.)  Moreover, we note that in Neofotistos v. Center
Ridge Co., 241 Ill. App. 3d 951, 955, 957, 609 N.E.2d 806 (1993),
the fact that two of five of the defendants had not objected to the
plaintiff's chosen forum was considered by that court in its
anyalsis of the forum non conveniens "convenience" factor. 
Additionally, in Snook v. Lake Forest Hospital, 133 Ill. App. 3d
998, 1000-001, 479 N.E.2d 994 (1985), the Snook court observed that
there was some suggestion that the principal defendant drug company
was located outside the State of Illinois and did not join the
three defendant doctors in filing objections to the forum of Cook
County.  The Snook court stated that while it did not have the
benefit of a transcript of the proceedings upon which to ascertain
if any consideration was given to any preference as to Cook or Lake
County by the defendant drug company, nor did it have the benefit
of knowing the reason why Lake County would be more convenient for
one of the defendant doctors who resided in Wisconsin, the trial
court would not have been "obliged to ignore the possible
inconvenience or effect to the other named defendants herein, if
any."  Snook, 133 Ill. App. 3d at 1001.
     As stated above, the role of this court is not to substitute
its judgment for that of the trial court or even to determine
whether the trial court exercised its discretion wisely, but rather
to determine whether the trial court abused its discretion. 
Schoon, 207 Ill. App. 3d at 609.  An abuse of discretion occurs
where the trial court acts arbitrarily, fails to employ
conscientious judgment and ignores recognized principles of law. 
Moffett v. Illinois Power Co., 248 Ill. App. 3d 752, 618 N.E.2d 1305 (1993).   Here, the record shows that the trial court was well
aware of the balancing test of private and public interest factors
in determining whether to grant a transfer of venue as articulated
in Schoon, upon which it relied.  We further observe that while the
deference to be accorded to a plaintiff regarding his choice of
forum is less when the plaintiff chooses a forum other than where
he resides or where the injury occurred, nonetheless the deference
to be accorded is only less, as opposed to none, and the test is
still whether the relevant factors viewed in their totality,
strongly favor transfer to another forum (Schoon, 207 Ill. App. 3d
at 907).  Based on the record in the present case, we therefore
hold that because defendants failed to present an adequate motion
to sustain their burden of showing that the relevant private
interest factors strongly favored another forum, and specifically
that Cook County was an inconvenient forum, the trial court did not
abuse its discretion in denying defendants' motion to transfer
venue pursuant to the doctrine of forum non conveniens.
     We briefly note that defendants' reliance on Blakely v.
Gilbane Building Co., 264 Ill. App. 3d 626, 637 N.E.2d 442 (1994),
in support of their argument that they need not make any showing
"regarding the substance or need for the witnesses," is misplaced. 
Blakely did not address this specific issue.  Additionally, Blakely
is factually distinguishable from the case at bar.  In Blakely, all
medical treatment and all the witnesses were located in or around
the defendant's requested transfer forum.  In the case at bar, some
of the witnesses are located in Cook County, 128 miles from McLean
County, and McHenry County, 145 miles from McLean County, four of
the six defendants are located outside of Illinois and defendants
failed to make any substantive showing of inconvenience.
     Similarly, in Bjurstrom, upon which defendants also rely, the
fact that the Bjurstrom court reversed the trial court's denial of
the defendant's motion to transfer the case from Cook County to
Rock Island County pursuant to a forum non conveniens motion was
based on the Bjurstrom court's determination that all the witnesses
lived in and around Rock Island County, the injury and treatment of
that injury occurred there and Cook County had no nexus to the
case, which is not the situation in the case at bar as stated
above.
     Additionally, the cases cited by Blakely do not support
defendant's argument that they were not required to make a showing
"regarding the substance or need for the witnessese."  Blakely
cites to Haring v. Chicago & North Western Transportation Co., 103 Ill. 2d 530, 470 N.E.2d 288 (1984), which in turn cites to Cotton
v. Louisville & N. R. Co., 14 Ill. 2d 144, 152 N.E.2d 385 (1958). 
In Haring, the plaintiff, in response to a motion filed by the
defendant to dismiss the plaintiff's complaint or to transfer the
action to a more convenient forum, filed a publication listing the
defendant's officers; the list contained in excess of 250 names,
and the affidavit accompanying the list simply described those
named as management employees of the defendant.  The plaintiff's
affidavit also stated that the greater majority of those named were
located in Chicago and that subsequent discovery would disclose
that some of the individuals would be witnesses in the litigation. 
The Haring court held that "the simple assertion that some one or
more of the 250 persons named may be witnesses" could not aid the
trial court in determining whether one forum over another would be
a more convenient forum.  (Emphasis added.)  Haring, 103 Ill. 2d  at
533.  The Haring court therefore remanded the case to the trial
court with directions that it grant the defendant's motion to
dismiss or, if the trial court found on remand that it was more
convenient to transfer the case to another forum as suggested by
the defendant, the court could do so.
     In Cotton, the defendant filed a motion to dismiss the
plaintiff's complaint based on the doctrine of forum non
conveniens.  The trial court denied the defendant's motion.  In
affirming the trial court, the Cotton court stated that before
undertaking to apply the relevant principles of law to the facts of
the case, it "must point out that the defendant's motion to dismiss
filed herein is vulnerable ***, namely, it is too general.  The
names of the witnesses and the nature of the proof proposed to be
adduced is not particularized."  Cotton, 14 Ill. 2d  at 168.  The
Cotton court further cited to General Portland Cement Co. v. Perry,
204 F.2d 316 (7th Cir. 1953), and quoted that court, which held "
'that the failure of the defendant to give the names of his
witnesses, to indicate what their testimony would be, to show how
vital that testimony would be to the defense of the case *** ,
furnished a reasonable basis for [the court] to find that the
defendant failed to sustain its burden of showing that the balance
as to the convenience of the witnesses *** so strongly favor ***
the defendant as to overcome the weight to be given to the
plaintiff's choice of forum.' "  Cotton, 14 Ill. 2d  at 168.
     Lastly, we note that the trial court did not specifically
address the public interest factors, nor did defendants
specifically argue the factors of public concern in the trial court
at the hearing on their original motion or motion for
reconsideration, which is the basis of this appeal.[fn3]  However,
because defendants failed to sustain their burden to show the main
private interest factor of inconvenience to the witnesses, we
cannot say that the public interest factors (the accident occurred
in McClean County and the congestion of Cook County court dockets),
as was the similar situation in Schoon, in conjunction with the
unsubstantiated private interest factor of inconvenience to the
witnesses, outweighed plaintiff's choice of forum or strongly
favored transfer.  Griffith v. Mitsubishi Aircraft International,
Inc., 136 Ill. 2d 101, 554 N.E.2d 209 (1990) (a court congestion
factor alone is not enough to justify transfer of a case from one
forum to another when balanced against other relevant factors). 
Accordingly, we hold that the trial court did not abuse its
discretion in denying defendants' motion to transfer based on a
consideration of the public interest factors.
     For the reasons stated, the judgment of the circuit court is
affirmed.
     Affirmed.
     WOLFSON, P.J., and CERDA, J., concur.
     [fn1]Ozark, Hanson Engineering, George Hyman Construction
Company and Cordeck are not parties to this appeal.
     [fn2]Plaintiff disputes that Ozark objected to Cook County as
the forum.
     [fn3]Defendants state in their brief on appeal that on
September 6, 1994 and January 11, 1995, when the trial court denied
their motions for transfer of venue and for reconsideration,
respectively, the court acknowledged that the public interest
factors weighed in favor of transfer.  However, the transcripts of
both those hearings, consisting of six and five pages,
respectively, contain no such statements by the court.