Whirlpool Corp. v. Certain Underwriters aat Lloyds London
Annotate this Case
Fourth Division
March 19, 1998
Nos. 1-97-2306, 1-97-4082 Cons.
WHIRLPOOL CORPORATION, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, ) HONORABLE
) RONALD C. RILEY,
Defendant-Appellee. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
There is nothing unusual about litigants jockeying for
position. Sometimes position matters, sometimes it does not.
Here, for four years the litigants have waged a fierce battle
over which forum will host their pollution insurance coverage
dispute. Here, apparently, position matters. We affirm the
trial judge's dismissal of the lawsuit on forum non conveniens
grounds.
FACTS
In the early 1970s, Whirlpool, a Delaware corporation with
its business headquarters in Michigan, sought excess pollution
insurance coverage on the "London Market." It contacted Bowes &
Company (Bowes), an independent Illinois broker, which "placed"
insurance in London. After meeting with Whirlpool
representatives in Michigan and discussing Whirlpool's insurance
requirements, Bowes contacted J.H. Minet & Company, Ltd. (Minet),
a London insurance broker, with this information.
Minet, in turn, contacted the "London Market" to find
underwriters willing to "obtain the risk" of insuring Whirlpool.
Minet found "lead underwriters" Janson Green, Ltd. and Certain
Companies per H.S. Weavers Underwriters (Agencies) Ltd. in
Lloyd's insurance syndicate to provide coverage for Whirlpool.
The underwriters evaluated Whirlpool's risk and conveyed their
proposed terms to Minet. Minet conveyed these terms to Bowes,
and Bowes conveyed these terms to Whirlpool. Whirlpool agreed to
these terms.
Then the communication chain reversed: Whirlpool contacted
Bowes, who contacted Minet, who contacted Lloyd's underwriters.
According to Bowes representative, Arthur Travis, Whirlpool's
coverage began when Lloyd's confirmed: "100 percent placed with
underwriters and London market as per our terms."
Travis described this long-distance procedure in his
deposition:
"The underwriters [at Lloyd's], the insurers,
would--they have the risk and they would present terms
saying they would write the risk with these terms and
conditions and with this cost. That would come to the
London broker [Minet] who would put it in form to send
to us saying here is the underwriters' position.
We [Bowes], in turn, go to the insured, Whirlpool
and say here are the terms that London is willing to
entertain to insure us. Whirlpool would then make a
decision if they wanted those terms or not. If they
did, they would have me place it on an effective date.
I would cable London and say, 'The insured has
given us an order to place those terms,' and then
London would come back with a cable saying it has been
bound and placed, and that would be conveyed back to
the insured."
After Lloyd's confirmation, Minet sent its "cover note"
summarizing Whirlpool's policy and terms to Bowes, and Bowes sent
its own cover note to Whirlpool. Then Minet drafted the formal
policy. In a 1971 letter to Whirlpool, Bowes representative
Frank Hunter noted, "The lead Underwriter has to approve the
final policy forms ***." According to Travis, formal policies to
replace interim cover notes were "[m]anufactured in London" by
either Lloyd's or Minet and sent to Bowes. Lloyd's underwriter
Peter Lowsley-Williams, in his affidavit, agreed: "The policies
were negotiated and issued in London. The policy documents in
the ordinary course of business would have been issued in London
and sent by the London broker [Minet] to the American broker
[Bowes] and from there to the Assured [Whirlpool]." Formal
policies often followed cover notes two years after the policies'
effective dates.
During their relationship Whirlpool and Lloyd's never
communicated directly, only through Bowes and Minet,
respectively. According to Travis, Bowes did not act as an agent
for either Whirlpool or Lloyd's, but rather as a conduit for
information: "We would present to the insured and to the insurer
the information." Travis said Bowes did not have the authority
to bind Lloyd's into insuring Whirlpool.
Additionally, Lloyd's public relations brochure said: "A
Lloyd's broker [presumably Minet] is not an insurance agent. He
does not represent the underwriters the same way as an insurance
company agent. He is, first and foremost, the representative of
the insured [Whirlpool] ***." However, in his deposition
Whirlpool's insurance manager, Jake Paschall, said Whirlpool
considered Bowes an agent of Lloyd's underwriters: "[A]s far as
we were concerned Bowes spoke for the insurers."
The policy became effective on February 15, 1971. Under the
policy Whirlpool would make payment of premiums and provide
notice of occurrences to Bowes. However, Lowsley-Williams'
affidavit disputed the significance of Bowes role: "[T]he
designation of Bowes & Company was made as an accommodation to
the Assured so that the Assured could make payment of premium and
give notice of occurrences to one entity rather than several
insurers throughout the London Market." Lloyd's underwriter
Peter Wilson, in his affidavit, corroborated Lowsley-Williams'
account. Additionally, Bowes issued endorsements only after
confirmation from Lloyd's. Through several renewals, and some
changes, the policy remained in effect through May 31, 1977.
Beginning in 1974, Whirlpool's Fort Smith Division disposed
of its solid and liquid waste at the Industrial Waste Control
(IWC) facility near Fort Smith, Arkansas. Whirlpool closed the
Fort Smith IWC facility in 1977. In 1982, the United States
Environmental Protection Agency named the Fort Smith facility a
"superfund" site and Whirlpool a potentially responsible party
under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), 42 U.S.C.A, 9601 et seq. (West 1995 &
Supp. 1997). By the 1990s, Whirlpool had incurred more than
$5,000,000 in investigation and remediation (clean-up) costs at
the Fort Smith IWC facility.
In 1988, Whirlpool filed suit in Michigan State court
against its primary insurers. Whirlpool eventually settled this
suit. Knowing its primary insurance would not cover the clean-up
costs, Whirlpool notified Lloyd's an occurrence might have
happened while Lloyd's still provided coverage in the 1970s. In
1989, Lloyd's reserved its rights under the policies.
On April 3, 1993, Whirlpool filed a declaratory judgment
action in the circuit court of Cook County against Lloyd's.
Whirlpool alleged Lloyd's failed to fulfill its contractual
obligation to provide excess pollution coverage for the 1970s
occurrence which necessitated the clean-up costs. Lloyd's,
represented here by one of its underwriters, Garety and Companies
(Garety), filed a forum non conveniens motion to dismiss.
On January 11, 1994, Judge Edward Hofert granted this
motion. The court said:
"[I]f the laws of the State of Illinois apply,
they can be applied by other courts other than this
court. Plaintiff [Whirlpool] is not a resident of this
State. The defendant [Garety] is not. The only issue
that possibly could conceivably [a]ffect Illinois has
to do with agency, and I see no reason why that cannot
be resolved otherwise. And whether or not the laws of
this state can be applied, can be applied by any state
court. I see no compelling reason for this state to
become involved in this case."
In denying Whirlpool's motion to reconsider, the court again
noted Whirlpool was not an Illinois resident and Illinois had
"plenty of crowded courts and plenty of cases."
Whirlpool appealed, and this court vacated and remanded the
forum non conveniens dismissal, concluding:
"There is no indication in this record that the
trial judge weighed the various private and public
factors that enter into a forum non conveniens
analysis. ***
We find the trial court abused its discretion
because it failed to weigh the relevant factors when
deciding whether 'another forum can better serve the
convenience of the parties and the ends of justice.'"
Whirlpool Corp. v. Certain Underwriters at Lloyd's
London [Whirlpool I], 278 Ill. App. 3d 175, 182, 662 N.E.2d 467 (quoting McClain v. Illinois Central Gulf
R.R. Co., 121 Ill. 2d 278, 288, 520 N.E.2d 368 (1988)).
On remand, Whirlpool filed an initial motion to reconsider.
Judge Margaret McBride entered and continued this motion, and
instead granted Garety's motion to reopen discovery limited to
"forum non conveniens issues." Garety filed another forum non
conveniens motion to dismiss. On May 28, 1997, Judge Ronald
Riley granted Garety's motion.
Judge Riley, saying he was "engaged in the weighing process
that the cases talk about," considered the following private and
public factors: location of witnesses and documentary evidence;
the asserted locations of contract negotiation and execution; the
interest of Michigan courts; and the burden of jury service on
Cook County residents. The court agreed with Garety in finding
the contract was not entered into in Illinois. The court also
noted the residence of the parties. Although conceding "I
wouldn't know where to transfer it to, folks," the court
concluded: "Illinois *** has no interest in this litigation."
(In a prior order, the court denied Whirlpool's motion to strike
Lowsley-Williams' and Wilson's affidavits; Whirlpool did not
appeal this order.)
Whirlpool filed another motion to reconsider before the
trial court. Whirlpool also filed a petition for leave to appeal
the forum non conveniens dismissal under Illinois Supreme Court
Rule 306(a)(2). See 155 Ill. 2d R.306(a)(2). This court granted
Whirlpool's petition. The trial court denied Whirlpool's motion
to reconsider, and Whirlpool also appealed that order under Rule
301. See 134 Ill. 2d R.301. This court consolidated these
cases.
On September 27, 1994, Garety filed a declaratory judgment
action against Whirlpool in Michigan Federal court. This suit
concerned Lloyd's liability for clean-up costs at the Fort Smith
IWC facility and 12 other pollution sites across the country.
After the parties had conducted some discovery, Whirlpool filed
an abstention motion to stay the Federal court proceedings.
Initially, the Federal court rejected Whirlpool's motion.
However, after Whirlpool I, the Federal court stayed Garety's
suit, tentatively noting "the significant interest that the State
of Illinois may have in this dispute relating to insurance
contracts potentially subject to Illinois law ***." Garety's
Federal case remains stayed, pending the outcome of Whirlpool's
second appeal here.
DECISION
Whirlpool accuses Garety of forum shopping by filing a
Federal court lawsuit in Michigan. Garety could level a similar
charge at Whirlpool for filing suit in Illinois. As noted in
Whirlpool I: "This dispute represents more than a mere jockeying
for position. The stakes are high. The insurance policies
contain much-litigated pollution exclusion clauses. There is no
coverage unless the spill was 'sudden and accidental.'"
Whirlpool I, 278 Ill. App. 3d at 182. The result of this appeal
could be outcome determinative: Illinois law might provide
coverage (see Outboard Marine Corp. v. Liberty Mutual Insurance
Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992)); Michigan law might
deny coverage (see Upjohn v. New Hampshire Insurance Co., 438
Mich. 197, 476 N.W.2d 392 (1991)). Arkansas courts have not
answered this question. See Minerva Enterprises, Inc. v.
Bituminous Casualty Corp., 312 Ark. 128, 851 S.W.2d 403
(1993)(addressing pollution exclusion clauses, but not "sudden
and accidental" language); see also Ratliff Enterprises, Inc. v.
American Employers Insurance Co., No. CA97-19 (Ark. Ct. App.
1997)(discussing "sudden and accidental" language in a non-
pollution, insurance context).
Resolution of Whirlpool's second appeal lies in the answers
to two related questions: (1) Did the trial court follow the
appellate court's mandate? And (2) if so, did the trial court
abuse its discretion in granting Garety's forum non conveniens
motion to dismiss?
1. Whirlpool I and its mandate
"The mandate of a reviewing court is the
transmittal of that court's judgment to the circuit
court, which revests the latter with jurisdiction.
[Citation.] When a judgment is reversed by a reviewing
court, that judgment is final upon all questions
decided, and if the cause is remanded, the circuit
court can take only such action as conforms to the
reviewing court's judgment. [Citation.] That is, the
circuit court may only do those things directed in the
mandate; it has no authority to act beyond the
mandate's dictates. [Citation.]
When the circuit court's action upon remand is
inconsistent with the reviewing court's mandate, it is
subject to reversal on appeal." Mancuso v. Beach, 187
Ill. App. 3d 388, 391, 543 N.E.2d 256 (1989)(citing PSL
Realty Co. v. Granite Investment Co., 86 Ill. 2d 291,
304, 427 N.E.2d 563 (1981)).
Generally, the trial court must follow precisely the
appellate court's mandate. In re Marriage of Jones, 187 Ill.
App. 3d 206, 215, 543 N.E.2d 119 (1989). However, when the
appellate court's mandate is not specific, the trial court must
consult the context of the mandate to determine what further
proceedings would comport with the opinion. People ex rel.
Bernardi v. City of Highland Park, 225 Ill. App. 3d 477, 482, 588 N.E.2d 427 (1992).
Here, this court instructed the trial court as follows:
"For the foregoing reasons, we vacate the trial
court's order of dismissal and remand the case for
consideration of the defendants' forum non conveniens
motion, consistent with the views expressed in this
opinion." Whirlpool I, 278 Ill. App. 3d at 183.
Whirlpool contends Judge McBride should not have reopened
discovery and Judge Riley should not have allowed Garety to
submit new evidence on its renewed forum non conveniens motion to
dismiss. When a case is remanded for proceedings consistent with
the appellate court's opinion, "the only restriction upon the
introduction of new evidence in the trial court is that such
evidence should neither be inconsistent with the contents of our
opinion, nor introduce grounds which did not exist at the
original hearing." Glass v. Peitchel, 63 Ill. App. 3d 57, 60,
380 N.E.2d 420 (1978).
Illinois Supreme Court Rule 187(b) provides: "Hearings on
motions to dismiss or transfer the action under the doctrine of
forum non conveniens shall be scheduled so as to allow the
parties sufficient time to conduct discovery on issues of fact
raised by such motions." 107 Ill. 2d R. 187(b). This rule gives
the trial court discretion on whether to allow discovery on forum
non conveniens issues. See 107 Ill. 2d R. 187, Committee
Comments.
Whirlpool's "two bites at the apple" contention (see Inland
Real Estate Corp. v. City of Palatine, 179 Ill. App. 3d 1001,
1005, 535 N.E.2d 42 (1989)) ignores the procedural posture of
this case on remand. While this court vacated the dismissal
order and remanded for consideration of Garety's forum non
conveniens motion, reopening discovery was appropriate. First,
Judge McBride, who replaced Judge Hofert, could not effectively
reconsider Garety's motion without dissecting an unfamiliar
record and so exercised her discretion to allow more discovery on
Garety's second motion. Similarly, Judge Riley, who replaced
Judge McBride, could not have weighed the forum non conveniens
factors without examining an unfamiliar record and also exercised
his discretion to allow more discovery. Second, the trial court
could not reconsider Garety's motion with respect to the forum
non conveniens factors enumerated in Whirlpool I without more
factual development.
This court in Whirlpool I seemed to say the contract was
entered into in Illinois. See Whirlpool I, 278 Ill. App. 3d at
182 ("the fact that the contract was entered into in Illinois").
However, this comment was casual obiter dicta. It never should
have been made. We were not called on, and did not intend, to
decide this issue. In the first appeal, the record provided an
incomplete picture of the place of contract. The trial court,
under two different judges, reopened discovery and accepted
evidence on this issue, eventually finding the contract was not
entered into in Illinois. We do not review that decision.
Although the trial court could have more clearly evaluated
the forum non conveniens factors, the record demonstrates the
trial court conducted "the required weighing process" (Whirlpool
I, 278 Ill. App. 3d at 181) before granting Garety's motion, and
thus complied with this court's mandate.
2. Forum non conveniens factors and trial court discretion
Forum non conveniens is an equitable doctrine which allows a
court to decline jurisdiction where a trial in another forum
"would better serve the ends of justice." Vinson v. Allstate,
144 Ill. 2d 306, 310, 579 N.E.2d 857 (1991). This common law
doctrine applies on an interstate basis, and the trial court can
dismiss a case which has "no practical connection to the forum"
where it was filed. Vinson, 144 Ill. 2d at 310. The doctrine
presupposes the existence of more than one court with
jurisdiction to hear the case. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 645 N.E.2d 184 (1994); Elling v. State Farm Mutual
Automobile Insurance Co., 291 Ill. App. 3d 311, 683 N.E.2d 929
(1997).
When ruling on a forum non conveniens motion, the trial
court must balance private and public interests. Kwasniewski v.
Schaid, 153 Ill. 2d 550, 607 N.E.2d 214 (1992).
The private interest factors include: "(1) the convenience
of the parties; (2) the relative ease of access to sources of
proof; (3) the accessibility of witnesses; and (4) 'all other
practical problems that make trial of a case easy, expeditious
and inexpensive.'" Whirlpool I, 278 Ill. App. 3d at 181 (quoting
Kwasniewski, 153 Ill. 2d at 553). Other private interest factors
include the availability of compulsory process, the cost of
obtaining attendance of willing witnesses, and the ability to
view the premises (if appropriate). Elling, 291 Ill. App. 3d at
314.
The public interest factors include: "(1) the congestion of
the court dockets; (2) the interest in deciding localized
controversies; and (3) the unfairness of imposing jury duty on
residents of a county [or a state] with little connection to the
litigation." Whirlpool I, 278 Ill. App. 3d at 181. Court
congestion is a relatively insignificant factor, especially where
the record does not show the other forum would resolve the case
more quickly. See Peile, 163 Ill. 2d at 342-43; Kwasniewski, 153 Ill. 2d at 555.
The private/public balance is tipped in favor of the
plaintiff's chosen forum. The forum non conveniens factors:
"*** must strongly favor the defendant in order to
override the plaintiff's statutory right to select the
forum. [Citation.] However, this right is accorded
less deference when the plaintiff does not reside in
the county [or state] he has chosen [citation] and the
situs of the injury is not located in the chosen
forum." Elling, 291 Ill. App. 3d at 314.
See Schoon v. Hill, 207 Ill. App. 3d 601, 605, 566 N.E.2d 718
(1991)("Although a plaintiff's choice of forum is generally
accorded great weight and will not be disturbed unless the
balance of factors strongly favors defendant, a plaintiff's
choice is entitled to less deference when plaintiff chooses a
foreign forum.").
The defendant bears the burden of proving the plaintiff's
chosen forum is inconvenient to the defendant and another forum
is more convenient to all parties. See Hall v. CBI Industries,
Inc., 264 Ill. App. 3d 299, 303, 636 N.E.2d 1037 (1994). In
other words, the defendant cannot assert the plaintiff's chosen
forum is inconvenient to the plaintiff. See Hoffmeister v. K
Mart Corp., 181 Ill. App. 3d 739, 537 N.E.2d 460 (1989).
In ruling on a forum non conveniens motion, a trial court
has considerable discretion, and this court will disturb the
trial court's ruling only if the trial court abused its
discretion in weighing the relevant factors. Peile, 163 Ill. 2d
at 336. In reviewing the trial court's decision to grant a forum
non conveniens motion to dismiss, an appellate court should not
conclude the trial court abused its discretion simply because a
plaintiff's chosen forum has an interest in the litigation.
Schoon, 207 Ill. App. 3d at 609.
The forum non conveniens factors in this case point more
toward Michigan and Arkansas than Illinois as the most convenient
forum for Whirlpool's claim.
a. Private factors:
Whirlpool could conveniently litigate its claim in Michigan.
In fact, Whirlpool brought its initial declaratory judgment
action against its primary insurers in a Michigan State court.
Lloyd's, an English company, also could conveniently litigate its
claim in Michigan. Lloyd's brought its declaratory judgment
claim in a Michigan Federal court. However, as a foreign
company, Lloyd's could litigate the instant case as conveniently
in Illinois. Both parties have Illinois attorneys, but the
location of counsel should not affect the forum non conveniens
weighing process.
The documentary evidence in this case is located primarily
in Michigan at Whirlpool headquarters, in England with Lloyd's
underwriters, and in Arkansas. Any documents Bowes may have had
in Illinois relating to Whirlpool's policy already have been
discovered.
The fact witnesses in this case come from Michigan, England,
and Arkansas. Only Travis, a Bowes representative, still lives
in Illinois for at least part of the year. Additionally, in a
coverage dispute over the arguable sudden seepage of pollution in
Arkansas, environmental opinion witnesses may come from other
locations across the country.
The lack of compulsory process over Lloyd's would cause
similar problems in any American jurisdiction, although Lloyd's
seems a willing participant in coverage disputes with Whirlpool.
A jury view of the premises, if appropriate, would be possible
only in Arkansas.
b. Public factors.
The Cook County circuit court is the largest unified county
court system in the country, with the congestion concomitant to
that distinction. The record shows the Arkansas courts remain
less congested. However, neither party has offered any evidence
on docket congestion in Michigan's Federal district or State
courts, much less England's courts. This factor is not
significant here, especially in light of this court's criticism
of the trial court's overemphasis of court congestion in the
first forum non conveniens hearing.
Jury duty would become a burden on Cook County residents.
While jurors might decide whether an Illinois broker acted as an
agent for an English insurance syndicate, the primary fact
questions would involve whether the English insurer's pollution
policy covered seeping at an IWC facility in Arkansas owned by a
Michigan resident corporation. Illinois connection to this
controversy is thin.
Finally, while Illinois has a "significant and substantial"
interest in resolving cases between Illinois residents
(Kwasniewski, 153 Ill. 2d at 556), this interest drastically
decreases in cases involving non-resident parties. Illinois
courts have expressed a desire to encourage litigation in the
forum where the injury occurred. See Brummett v. Wepfer Marine,
Inc., 111 Ill. 2d 495, 490 N.E.2d 694 (1986); Wieser v. Missouri
Pacific R.R. Co., 98 Ill. 2d 359, 456 N.E.2d 98 (1983); Peterson
v. Monsanto Co., 181 Ill. App. 3d 677, 537 N.E.2d 1030 (1989).
Whirlpool's complaint describes its injury as the monetary loss
from Lloyd's "failure to fulfill its contractual obligations."
Whirlpool suffered no monetary loss in Illinois. Logic dictates
Whirlpool lost money where it maintains its headquarters--in
Michigan.
Whirlpool's domicile is Michigan. Lloyd's domicile is
England. The formal policy was issued in England by Minet and
forwarded to Bowes in Chicago, but delivered to Whirlpool in
Michigan. The cover notes, summarizing Lloyd's coverage, were
issued by Minet in England and Bowes in Chicago, but delivered to
Whirlpool in Michigan.
The last act to give rise to the formal policy--Lloyd's
underwriters' approval--occurred in England. The last act to
give rise to coverage--Lloyd's "100 percent placed" confirmation
message--occurred in England.
Whirlpool notes it paid premiums to Bowes and notified Bowes
of any occurrences in Chicago. Whirlpool also notes Bowes issued
endorsements, which affected the terms of the policy, with
Lloyd's authorization. Further, Whirlpool contends it negotiated
its policy only with Bowes, and only Bowes negotiated with
Lloyd's. However, the record shows Bowes acted merely as a
conduit for money and information between Whirlpool and Minet,
Lloyd's broker. Negotiations occurred in Michigan, Chicago, and
England. The parties discharged policy obligations in Michigan,
Chicago, and England.
Illinois has the least at stake of any potential forum.
Neither party is an Illinois resident. The insured property and
the coverage-triggering event were in Arkansas. There are some
lingering issues of whether Bowes acted as an agent for Lloyd's
under Illinois law, but another court could apply these agency
principles. Michigan has an interest in vindicating the contract
rights of its citizens against foreign encroachment. England has
a parallel interest. Arkansas has a substantial interest in its
polluted soil.
While Whirlpool chose Illinois courts as a forum for its
dispute with Lloyd's, the trial court found Illinois was a forum
non conveniens. This was a close case. But "[t]he 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.'" Schoon, 207 Ill. App. 3d at 609.
Illinois courts have described an abuse of discretion in
various ways: a ruling which "no reasonable person would take
the view adopted by [it]" (O'Connell v. City of Chicago, 285 Ill.
App. 3d 459, 463, 674 N.E.2d 105 (1996)); a ruling made "without
the employment of conscientious judgment" or which "exceeded the
bounds of reason" (Kaden v. Pucinski, 263 Ill. App. 3d 611, 615,
635 N.E.2d 468 (1994)); a ruling with "no reasonable basis in the
evidence" (Ford v. Baker, 61 Ill. App. 3d 45, 46, 377 N.E.2d 853
(1978)); and a ruling whose "opposite result is clearly evident
from a review of the evidence" (In re J.P., 261 Ill. App. 3d 165,
174, 633 N.E.2d 27 (1994)). Perhaps we would have decided this
case differently under a de novo standard of review. However, we
cannot say the trial court's ruling fits within any of the
decisional definitions of "abuse of discretion."
CONCLUSION
The trial court followed this court's instructions on remand
and did not abuse its discretion in granting Garety's forum non
conveniens motion. We affirm.
AFFIRMED.
McNAMARA and SOUTH, JJ., concur.
March 19, 1998
Nos. 1-97-2306, 1-97-4082 Cons.
WHIRLPOOL CORPORATION, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, ) HONORABLE
) RONALD C. RILEY,
Defendant-Appellee. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
There is nothing unusual about litigants jockeying for
position. Sometimes position matters, sometimes it does not.
Here, for four years the litigants have waged a fierce battle
over which forum will host their pollution insurance coverage
dispute. Here, apparently, position matters. We affirm the
trial judge's dismissal of the lawsuit on forum non conveniens
grounds.
FACTS
In the early 1970s, Whirlpool, a Delaware corporation with
its business headquarters in Michigan, sought excess pollution
insurance coverage on the "London Market." It contacted Bowes &
Company (Bowes), an independent Illinois broker, which "placed"
insurance in London. After meeting with Whirlpool
representatives in Michigan and discussing Whirlpool's insurance
requirements, Bowes contacted J.H. Minet & Company, Ltd. (Minet),
a London insurance broker, with this information.
Minet, in turn, contacted the "London Market" to find
underwriters willing to "obtain the risk" of insuring Whirlpool.
Minet found "lead underwriters" Janson Green, Ltd. and Certain
Companies per H.S. Weavers Underwriters (Agencies) Ltd. in
Lloyd's insurance syndicate to provide coverage for Whirlpool.
The underwriters evaluated Whirlpool's risk and conveyed their
proposed terms to Minet. Minet conveyed these terms to Bowes,
and Bowes conveyed these terms to Whirlpool. Whirlpool agreed to
these terms.
Then the communication chain reversed: Whirlpool contacted
Bowes, who contacted Minet, who contacted Lloyd's underwriters.
According to Bowes representative, Arthur Travis, Whirlpool's
coverage began when Lloyd's confirmed: "100 percent placed with
underwriters and London market as per our terms."
Travis described this long-distance procedure in his
deposition:
"The underwriters [at Lloyd's], the insurers,
would--they have the risk and they would present terms
saying they would write the risk with these terms and
conditions and with this cost. That would come to the
London broker [Minet] who would put it in form to send
to us saying here is the underwriters' position.
We [Bowes], in turn, go to the insured, Whirlpool
and say here are the terms that London is willing to
entertain to insure us. Whirlpool would then make a
decision if they wanted those terms or not. If they
did, they would have me place it on an effective date.
I would cable London and say, 'The insured has
given us an order to place those terms,' and then
London would come back with a cable saying it has been
bound and placed, and that would be conveyed back to
the insured."
After Lloyd's confirmation, Minet sent its "cover note"
summarizing Whirlpool's policy and terms to Bowes, and Bowes sent
its own cover note to Whirlpool. Then Minet drafted the formal
policy. In a 1971 letter to Whirlpool, Bowes representative
Frank Hunter noted, "The lead Underwriter has to approve the
final policy forms ***." According to Travis, formal policies to
replace interim cover notes were "[m]anufactured in London" by
either Lloyd's or Minet and sent to Bowes. Lloyd's underwriter
Peter Lowsley-Williams, in his affidavit, agreed: "The policies
were negotiated and issued in London. The policy documents in
the ordinary course of business would have been issued in London
and sent by the London broker [Minet] to the American broker
[Bowes] and from there to the Assured [Whirlpool]." Formal
policies often followed cover notes two years after the policies'
effective dates.
During their relationship Whirlpool and Lloyd's never
communicated directly, only through Bowes and Minet,
respectively. According to Travis, Bowes did not act as an agent
for either Whirlpool or Lloyd's, but rather as a conduit for
information: "We would present to the insured and to the insurer
the information." Travis said Bowes did not have the authority
to bind Lloyd's into insuring Whirlpool.
Additionally, Lloyd's public relations brochure said: "A
Lloyd's broker [presumably Minet] is not an insurance agent. He
does not represent the underwriters the same way as an insurance
company agent. He is, first and foremost, the representative of
the insured [Whirlpool] ***." However, in his deposition
Whirlpool's insurance manager, Jake Paschall, said Whirlpool
considered Bowes an agent of Lloyd's underwriters: "[A]s far as
we were concerned Bowes spoke for the insurers."
The policy became effective on February 15, 1971. Under the
policy Whirlpool would make payment of premiums and provide
notice of occurrences to Bowes. However, Lowsley-Williams'
affidavit disputed the significance of Bowes role: "[T]he
designation of Bowes & Company was made as an accommodation to
the Assured so that the Assured could make payment of premium and
give notice of occurrences to one entity rather than several
insurers throughout the London Market." Lloyd's underwriter
Peter Wilson, in his affidavit, corroborated Lowsley-Williams'
account. Additionally, Bowes issued endorsements only after
confirmation from Lloyd's. Through several renewals, and some
changes, the policy remained in effect through May 31, 1977.
Beginning in 1974, Whirlpool's Fort Smith Division disposed
of its solid and liquid waste at the Industrial Waste Control
(IWC) facility near Fort Smith, Arkansas. Whirlpool closed the
Fort Smith IWC facility in 1977. In 1982, the United States
Environmental Protection Agency named the Fort Smith facility a
"superfund" site and Whirlpool a potentially responsible party
under the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), 42 U.S.C.A, 9601 et seq. (West 1995 &
Supp. 1997). By the 1990s, Whirlpool had incurred more than
$5,000,000 in investigation and remediation (clean-up) costs at
the Fort Smith IWC facility.
In 1988, Whirlpool filed suit in Michigan State court
against its primary insurers. Whirlpool eventually settled this
suit. Knowing its primary insurance would not cover the clean-up
costs, Whirlpool notified Lloyd's an occurrence might have
happened while Lloyd's still provided coverage in the 1970s. In
1989, Lloyd's reserved its rights under the policies.
On April 3, 1993, Whirlpool filed a declaratory judgment
action in the circuit court of Cook County against Lloyd's.
Whirlpool alleged Lloyd's failed to fulfill its contractual
obligation to provide excess pollution coverage for the 1970s
occurrence which necessitated the clean-up costs. Lloyd's,
represented here by one of its underwriters, Garety and Companies
(Garety), filed a forum non conveniens motion to dismiss.
On January 11, 1994, Judge Edward Hofert granted this
motion. The court said:
"[I]f the laws of the State of Illinois apply,
they can be applied by other courts other than this
court. Plaintiff [Whirlpool] is not a resident of this
State. The defendant [Garety] is not. The only issue
that possibly could conceivably [a]ffect Illinois has
to do with agency, and I see no reason why that cannot
be resolved otherwise. And whether or not the laws of
this state can be applied, can be applied by any state
court. I see no compelling reason for this state to
become involved in this case."
In denying Whirlpool's motion to reconsider, the court again
noted Whirlpool was not an Illinois resident and Illinois had
"plenty of crowded courts and plenty of cases."
Whirlpool appealed, and this court vacated and remanded the
forum non conveniens dismissal, concluding:
"There is no indication in this record that the
trial judge weighed the various private and public
factors that enter into a forum non conveniens
analysis. ***
We find the trial court abused its discretion
because it failed to weigh the relevant factors when
deciding whether 'another forum can better serve the
convenience of the parties and the ends of justice.'"
Whirlpool Corp. v. Certain Underwriters at Lloyd's
London [Whirlpool I], 278 Ill. App. 3d 175, 182, 662 N.E.2d 467 (quoting McClain v. Illinois Central Gulf
R.R. Co., 121 Ill. 2d 278, 288, 520 N.E.2d 368 (1988)).
On remand, Whirlpool filed an initial motion to reconsider.
Judge Margaret McBride entered and continued this motion, and
instead granted Garety's motion to reopen discovery limited to
"forum non conveniens issues." Garety filed another forum non
conveniens motion to dismiss. On May 28, 1997, Judge Ronald
Riley granted Garety's motion.
Judge Riley, saying he was "engaged in the weighing process
that the cases talk about," considered the following private and
public factors: location of witnesses and documentary evidence;
the asserted locations of contract negotiation and execution; the
interest of Michigan courts; and the burden of jury service on
Cook County residents. The court agreed with Garety in finding
the contract was not entered into in Illinois. The court also
noted the residence of the parties. Although conceding "I
wouldn't know where to transfer it to, folks," the court
concluded: "Illinois *** has no interest in this litigation."
(In a prior order, the court denied Whirlpool's motion to strike
Lowsley-Williams' and Wilson's affidavits; Whirlpool did not
appeal this order.)
Whirlpool filed another motion to reconsider before the
trial court. Whirlpool also filed a petition for leave to appeal
the forum non conveniens dismissal under Illinois Supreme Court
Rule 306(a)(2). See 155 Ill. 2d R.306(a)(2). This court granted
Whirlpool's petition. The trial court denied Whirlpool's motion
to reconsider, and Whirlpool also appealed that order under Rule
301. See 134 Ill. 2d R.301. This court consolidated these
cases.
On September 27, 1994, Garety filed a declaratory judgment
action against Whirlpool in Michigan Federal court. This suit
concerned Lloyd's liability for clean-up costs at the Fort Smith
IWC facility and 12 other pollution sites across the country.
After the parties had conducted some discovery, Whirlpool filed
an abstention motion to stay the Federal court proceedings.
Initially, the Federal court rejected Whirlpool's motion.
However, after Whirlpool I, the Federal court stayed Garety's
suit, tentatively noting "the significant interest that the State
of Illinois may have in this dispute relating to insurance
contracts potentially subject to Illinois law ***." Garety's
Federal case remains stayed, pending the outcome of Whirlpool's
second appeal here.
DECISION
Whirlpool accuses Garety of forum shopping by filing a
Federal court lawsuit in Michigan. Garety could level a similar
charge at Whirlpool for filing suit in Illinois. As noted in
Whirlpool I: "This dispute represents more than a mere jockeying
for position. The stakes are high. The insurance policies
contain much-litigated pollution exclusion clauses. There is no
coverage unless the spill was 'sudden and accidental.'"
Whirlpool I, 278 Ill. App. 3d at 182. The result of this appeal
could be outcome determinative: Illinois law might provide
coverage (see Outboard Marine Corp. v. Liberty Mutual Insurance
Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992)); Michigan law might
deny coverage (see Upjohn v. New Hampshire Insurance Co., 438
Mich. 197, 476 N.W.2d 392 (1991)). Arkansas courts have not
answered this question. See Minerva Enterprises, Inc. v.
Bituminous Casualty Corp., 312 Ark. 128, 851 S.W.2d 403
(1993)(addressing pollution exclusion clauses, but not "sudden
and accidental" language); see also Ratliff Enterprises, Inc. v.
American Employers Insurance Co., No. CA97-19 (Ark. Ct. App.
1997)(discussing "sudden and accidental" language in a non-
pollution, insurance context).
Resolution of Whirlpool's second appeal lies in the answers
to two related questions: (1) Did the trial court follow the
appellate court's mandate? And (2) if so, did the trial court
abuse its discretion in granting Garety's forum non conveniens
motion to dismiss?
1. Whirlpool I and its mandate
"The mandate of a reviewing court is the
transmittal of that court's judgment to the circuit
court, which revests the latter with jurisdiction.
[Citation.] When a judgment is reversed by a reviewing
court, that judgment is final upon all questions
decided, and if the cause is remanded, the circuit
court can take only such action as conforms to the
reviewing court's judgment. [Citation.] That is, the
circuit court may only do those things directed in the
mandate; it has no authority to act beyond the
mandate's dictates. [Citation.]
When the circuit court's action upon remand is
inconsistent with the reviewing court's mandate, it is
subject to reversal on appeal." Mancuso v. Beach, 187
Ill. App. 3d 388, 391, 543 N.E.2d 256 (1989)(citing PSL
Realty Co. v. Granite Investment Co., 86 Ill. 2d 291,
304, 427 N.E.2d 563 (1981)).
Generally, the trial court must follow precisely the
appellate court's mandate. In re Marriage of Jones, 187 Ill.
App. 3d 206, 215, 543 N.E.2d 119 (1989). However, when the
appellate court's mandate is not specific, the trial court must
consult the context of the mandate to determine what further
proceedings would comport with the opinion. People ex rel.
Bernardi v. City of Highland Park, 225 Ill. App. 3d 477, 482, 588 N.E.2d 427 (1992).
Here, this court instructed the trial court as follows:
"For the foregoing reasons, we vacate the trial
court's order of dismissal and remand the case for
consideration of the defendants' forum non conveniens
motion, consistent with the views expressed in this
opinion." Whirlpool I, 278 Ill. App. 3d at 183.
Whirlpool contends Judge McBride should not have reopened
discovery and Judge Riley should not have allowed Garety to
submit new evidence on its renewed forum non conveniens motion to
dismiss. When a case is remanded for proceedings consistent with
the appellate court's opinion, "the only restriction upon the
introduction of new evidence in the trial court is that such
evidence should neither be inconsistent with the contents of our
opinion, nor introduce grounds which did not exist at the
original hearing." Glass v. Peitchel, 63 Ill. App. 3d 57, 60,
380 N.E.2d 420 (1978).
Illinois Supreme Court Rule 187(b) provides: "Hearings on
motions to dismiss or transfer the action under the doctrine of
forum non conveniens shall be scheduled so as to allow the
parties sufficient time to conduct discovery on issues of fact
raised by such motions." 107 Ill. 2d R. 187(b). This rule gives
the trial court discretion on whether to allow discovery on forum
non conveniens issues. See 107 Ill. 2d R. 187, Committee
Comments.
Whirlpool's "two bites at the apple" contention (see Inland
Real Estate Corp. v. City of Palatine, 179 Ill. App. 3d 1001,
1005, 535 N.E.2d 42 (1989)) ignores the procedural posture of
this case on remand. While this court vacated the dismissal
order and remanded for consideration of Garety's forum non
conveniens motion, reopening discovery was appropriate. First,
Judge McBride, who replaced Judge Hofert, could not effectively
reconsider Garety's motion without dissecting an unfamiliar
record and so exercised her discretion to allow more discovery on
Garety's second motion. Similarly, Judge Riley, who replaced
Judge McBride, could not have weighed the forum non conveniens
factors without examining an unfamiliar record and also exercised
his discretion to allow more discovery. Second, the trial court
could not reconsider Garety's motion with respect to the forum
non conveniens factors enumerated in Whirlpool I without more
factual development.
This court in Whirlpool I seemed to say the contract was
entered into in Illinois. See Whirlpool I, 278 Ill. App. 3d at
182 ("the fact that the contract was entered into in Illinois").
However, this comment was casual obiter dicta. It never should
have been made. We were not called on, and did not intend, to
decide this issue. In the first appeal, the record provided an
incomplete picture of the place of contract. The trial court,
under two different judges, reopened discovery and accepted
evidence on this issue, eventually finding the contract was not
entered into in Illinois. We do not review that decision.
Although the trial court could have more clearly evaluated
the forum non conveniens factors, the record demonstrates the
trial court conducted "the required weighing process" (Whirlpool
I, 278 Ill. App. 3d at 181) before granting Garety's motion, and
thus complied with this court's mandate.
2. Forum non conveniens factors and trial court discretion
Forum non conveniens is an equitable doctrine which allows a
court to decline jurisdiction where a trial in another forum
"would better serve the ends of justice." Vinson v. Allstate,
144 Ill. 2d 306, 310, 579 N.E.2d 857 (1991). This common law
doctrine applies on an interstate basis, and the trial court can
dismiss a case which has "no practical connection to the forum"
where it was filed. Vinson, 144 Ill. 2d at 310. The doctrine
presupposes the existence of more than one court with
jurisdiction to hear the case. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 645 N.E.2d 184 (1994); Elling v. State Farm Mutual
Automobile Insurance Co., 291 Ill. App. 3d 311, 683 N.E.2d 929
(1997).
When ruling on a forum non conveniens motion, the trial
court must balance private and public interests. Kwasniewski v.
Schaid, 153 Ill. 2d 550, 607 N.E.2d 214 (1992).
The private interest factors include: "(1) the convenience
of the parties; (2) the relative ease of access to sources of
proof; (3) the accessibility of witnesses; and (4) 'all other
practical problems that make trial of a case easy, expeditious
and inexpensive.'" Whirlpool I, 278 Ill. App. 3d at 181 (quoting
Kwasniewski, 153 Ill. 2d at 553). Other private interest factors
include the availability of compulsory process, the cost of
obtaining attendance of willing witnesses, and the ability to
view the premises (if appropriate). Elling, 291 Ill. App. 3d at
314.
The public interest factors include: "(1) the congestion of
the court dockets; (2) the interest in deciding localized
controversies; and (3) the unfairness of imposing jury duty on
residents of a county [or a state] with little connection to the
litigation." Whirlpool I, 278 Ill. App. 3d at 181. Court
congestion is a relatively insignificant factor, especially where
the record does not show the other forum would resolve the case
more quickly. See Peile, 163 Ill. 2d at 342-43; Kwasniewski, 153 Ill. 2d at 555.
The private/public balance is tipped in favor of the
plaintiff's chosen forum. The forum non conveniens factors:
"*** must strongly favor the defendant in order to
override the plaintiff's statutory right to select the
forum. [Citation.] However, this right is accorded
less deference when the plaintiff does not reside in
the county [or state] he has chosen [citation] and the
situs of the injury is not located in the chosen
forum." Elling, 291 Ill. App. 3d at 314.
See Schoon v. Hill, 207 Ill. App. 3d 601, 605, 566 N.E.2d 718
(1991)("Although a plaintiff's choice of forum is generally
accorded great weight and will not be disturbed unless the
balance of factors strongly favors defendant, a plaintiff's
choice is entitled to less deference when plaintiff chooses a
foreign forum.").
The defendant bears the burden of proving the plaintiff's
chosen forum is inconvenient to the defendant and another forum
is more convenient to all parties. See Hall v. CBI Industries,
Inc., 264 Ill. App. 3d 299, 303, 636 N.E.2d 1037 (1994). In
other words, the defendant cannot assert the plaintiff's chosen
forum is inconvenient to the plaintiff. See Hoffmeister v. K
Mart Corp., 181 Ill. App. 3d 739, 537 N.E.2d 460 (1989).
In ruling on a forum non conveniens motion, a trial court
has considerable discretion, and this court will disturb the
trial court's ruling only if the trial court abused its
discretion in weighing the relevant factors. Peile, 163 Ill. 2d
at 336. In reviewing the trial court's decision to grant a forum
non conveniens motion to dismiss, an appellate court should not
conclude the trial court abused its discretion simply because a
plaintiff's chosen forum has an interest in the litigation.
Schoon, 207 Ill. App. 3d at 609.
The forum non conveniens factors in this case point more
toward Michigan and Arkansas than Illinois as the most convenient
forum for Whirlpool's claim.
a. Private factors:
Whirlpool could conveniently litigate its claim in Michigan.
In fact, Whirlpool brought its initial declaratory judgment
action against its primary insurers in a Michigan State court.
Lloyd's, an English company, also could conveniently litigate its
claim in Michigan. Lloyd's brought its declaratory judgment
claim in a Michigan Federal court. However, as a foreign
company, Lloyd's could litigate the instant case as conveniently
in Illinois. Both parties have Illinois attorneys, but the
location of counsel should not affect the forum non conveniens
weighing process.
The documentary evidence in this case is located primarily
in Michigan at Whirlpool headquarters, in England with Lloyd's
underwriters, and in Arkansas. Any documents Bowes may have had
in Illinois relating to Whirlpool's policy already have been
discovered.
The fact witnesses in this case come from Michigan, England,
and Arkansas. Only Travis, a Bowes representative, still lives
in Illinois for at least part of the year. Additionally, in a
coverage dispute over the arguable sudden seepage of pollution in
Arkansas, environmental opinion witnesses may come from other
locations across the country.
The lack of compulsory process over Lloyd's would cause
similar problems in any American jurisdiction, although Lloyd's
seems a willing participant in coverage disputes with Whirlpool.
A jury view of the premises, if appropriate, would be possible
only in Arkansas.
b. Public factors.
The Cook County circuit court is the largest unified county
court system in the country, with the congestion concomitant to
that distinction. The record shows the Arkansas courts remain
less congested. However, neither party has offered any evidence
on docket congestion in Michigan's Federal district or State
courts, much less England's courts. This factor is not
significant here, especially in light of this court's criticism
of the trial court's overemphasis of court congestion in the
first forum non conveniens hearing.
Jury duty would become a burden on Cook County residents.
While jurors might decide whether an Illinois broker acted as an
agent for an English insurance syndicate, the primary fact
questions would involve whether the English insurer's pollution
policy covered seeping at an IWC facility in Arkansas owned by a
Michigan resident corporation. Illinois connection to this
controversy is thin.
Finally, while Illinois has a "significant and substantial"
interest in resolving cases between Illinois residents
(Kwasniewski, 153 Ill. 2d at 556), this interest drastically
decreases in cases involving non-resident parties. Illinois
courts have expressed a desire to encourage litigation in the
forum where the injury occurred. See Brummett v. Wepfer Marine,
Inc., 111 Ill. 2d 495, 490 N.E.2d 694 (1986); Wieser v. Missouri
Pacific R.R. Co., 98 Ill. 2d 359, 456 N.E.2d 98 (1983); Peterson
v. Monsanto Co., 181 Ill. App. 3d 677, 537 N.E.2d 1030 (1989).
Whirlpool's complaint describes its injury as the monetary loss
from Lloyd's "failure to fulfill its contractual obligations."
Whirlpool suffered no monetary loss in Illinois. Logic dictates
Whirlpool lost money where it maintains its headquarters--in
Michigan.
Whirlpool's domicile is Michigan. Lloyd's domicile is
England. The formal policy was issued in England by Minet and
forwarded to Bowes in Chicago, but delivered to Whirlpool in
Michigan. The cover notes, summarizing Lloyd's coverage, were
issued by Minet in England and Bowes in Chicago, but delivered to
Whirlpool in Michigan.
The last act to give rise to the formal policy--Lloyd's
underwriters' approval--occurred in England. The last act to
give rise to coverage--Lloyd's "100 percent placed" confirmation
message--occurred in England.
Whirlpool notes it paid premiums to Bowes and notified Bowes
of any occurrences in Chicago. Whirlpool also notes Bowes issued
endorsements, which affected the terms of the policy, with
Lloyd's authorization. Further, Whirlpool contends it negotiated
its policy only with Bowes, and only Bowes negotiated with
Lloyd's. However, the record shows Bowes acted merely as a
conduit for money and information between Whirlpool and Minet,
Lloyd's broker. Negotiations occurred in Michigan, Chicago, and
England. The parties discharged policy obligations in Michigan,
Chicago, and England.
Illinois has the least at stake of any potential forum.
Neither party is an Illinois resident. The insured property and
the coverage-triggering event were in Arkansas. There are some
lingering issues of whether Bowes acted as an agent for Lloyd's
under Illinois law, but another court could apply these agency
principles. Michigan has an interest in vindicating the contract
rights of its citizens against foreign encroachment. England has
a parallel interest. Arkansas has a substantial interest in its
polluted soil.
While Whirlpool chose Illinois courts as a forum for its
dispute with Lloyd's, the trial court found Illinois was a forum
non conveniens. This was a close case. But "[t]he 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.'" Schoon, 207 Ill. App. 3d at 609.
Illinois courts have described an abuse of discretion in
various ways: a ruling which "no reasonable person would take
the view adopted by [it]" (O'Connell v. City of Chicago, 285 Ill.
App. 3d 459, 463, 674 N.E.2d 105 (1996)); a ruling made "without
the employment of conscientious judgment" or which "exceeded the
bounds of reason" (Kaden v. Pucinski, 263 Ill. App. 3d 611, 615,
635 N.E.2d 468 (1994)); a ruling with "no reasonable basis in the
evidence" (Ford v. Baker, 61 Ill. App. 3d 45, 46, 377 N.E.2d 853
(1978)); and a ruling whose "opposite result is clearly evident
from a review of the evidence" (In re J.P., 261 Ill. App. 3d 165,
174, 633 N.E.2d 27 (1994)). Perhaps we would have decided this
case differently under a de novo standard of review. However, we
cannot say the trial court's ruling fits within any of the
decisional definitions of "abuse of discretion."
CONCLUSION
The trial court followed this court's instructions on remand
and did not abuse its discretion in granting Garety's forum non
conveniens motion. We affirm.
AFFIRMED.
McNAMARA and SOUTH, JJ., concur.
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