Eads v. Consolidated Rail Corp.

847 N.E.2d 601, 365 Ill. App. 3d 19, 301 Ill. Dec. 591, 2006 Ill. App. LEXIS 192
Appellate Court of Illinois·Decided March 20, 2006·No. 1-05-1895·Published·Cited by 20 cases

Opinion

JUSTICE McBRIDE

delivered the opinion of the court:

In this permissive interlocutory appeal pursuant to Supreme Court Rule 306, the defendant, Consolidated Rail Corporation (Conrail), a Pennsylvania corporation, contends it was an abuse of discretion for the circuit court of Cook County to deny its motion to dismiss the Indiana plaintiffs negligence action on the basis of forum non conveniens before a retrial on the action commences in this jurisdiction. 166 Ill. 2d R. 306.

The accident at issue occurred in Indiana at approximately 3:37 p.m. on Saturday, September 20, 1997, when plaintiff Tracie D. Eads was riding in the front passenger seat of a 1989 Chevrolet Astro Van being driven by her friend, Donald L. Steiner. Like Eads, Steiner resided in Goshen, Elkhart County, Indiana. Steiner drove the van south on a two-lane, unpaved, gravel road, Elkhart County Road 31, to its juncture with train tracks owned and maintained by Conrail, approximately one-half mile north of Elkhart County Road 38. The rural, grade-level crossing was flanked by soybean fields and woods, and equipped with advance warning signs, crossbuck signs, and stop signs, but not automatic gates or flashing lights. There was conflicting witness testimony as to whether Steiner heeded the stop sign before driving into the path of an eastbound Conrail freight train. The train was approximately 100 miles from Chicago, returning to Toledo, Ohio, and its crew consisted of engineer Michael J. Schmidt, who resided in Sylvania, Ohio, and conductor Daniel R. Bailey, who resided in Wayne, Ohio. When the freight train struck Eads’ side of the van, she and Steiner were ejected from the vehicle. Ronald G. Denning was mowing a field near the crossing and Kendall Toole was busy working on a nearby home, and they hurried to the scene of the collision. The collision was investigated by deputies Michael Carich, Brian Holloman, and Deb Fulk, of the Elkhart County, Indiana, sheriffs department. Steiner died at the scene and Eads was transported to Goshen General Hospital, in Goshen, Elkhart County, Indiana, and then Parkview Trauma, in Fort Wayne, Indiana, for treatment of her injuries. All of Eads’ medical care was provided in Indiana. Her primary treating physician was Dr. Stephen Ribaudo, a physiatrist, whose office was in South Bend, Indiana. She was also treated by neurosurgeon Dr. Stephen Schroeder, of Fort Wayne, Indiana, Dr. Donald Graber, of Elkhart, Indiana, Dr. Mohammed Zeitoun, of Merrillville, Indiana, and Behavioral Psychological Family Services, of South Bend, Indiana. Eads has remained a resident of Elkhart County throughout these proceedings.

Eads filed a negligence action against Steiner’s estate in Elkhart County on February 27, 1998, and then a separate negligence action in Madison County, Illinois, on August 20, 1998, against Conrail and two of its employees. In the Indiana action, Eads alleged Steiner’s negligence was the sole cause of her injuries. In the Illinois action, Eads did not allege any negligence on the part of Steiner, train engineer Schmidt, conductor Bailey, or Schmidt and Bailey’s direct supervisors who were located in Elkhart County, Indiana, and Dear-born, Michigan. She did, however, name as defendants two Conrail employees who worked in Cook County, Milt Leppert and George Marx, and alleged these individuals negligently failed to properly train and supervise the train crew, negligently failed to evaluate the need for and order the installation of gates and lights at the crossing, and also negligently failed to order a speed reduction at the crossing.

On October 13, 1998, Conrail filed a notice of removal to the federal District Court for the Southern District of Illinois on the basis of diverse citizenship and an amount in controversy exceeding $75,000. See 28 U.S.C. § 1332 (2000). Conrail argued diversity existed because it was a resident of Pennsylvania and Eads was a resident of Indiana, and that Marx and Leppert’s Illinois residency should be disregarded because Eads had fraudulently joined the Cook County personnel as defendants solely for the purposes of jurisdiction. Conrail provided affidavits from Marx and Leppert indicating they had no direct supervisory authority over the crew. Eads, however, sought and obtained leave to add another defendant, Conrail employee John Ryan, an “Assistant Vice President of Operating Rules” working in Cook County, and then motioned to remand the case to Madison County. Eads’ motion was granted on December 15, 1998.

On January 13, 1999, Conrail filed what would be the first of four written or oral motions in the Illinois state courts that was based on the equitable doctrine of forum non conveniens. In this first motion, Conrail asked Madison County to dismiss Eads’ action so that it could be refiled in Indiana, because her residence, the accident site, most of the postoccurrence witnesses and all of the medical witnesses were in Indiana. Conrail argued that when Eads rejected her home county and home state, and filed her action in a jurisdiction that had no interest in its outcome, Eads demonstrated she was forum shopping. As an alternative, Conrail asked Madison County to transfer the case to Cook County because Madison County had a .congested docket and no arguable connection to the litigation, and the three individual defendants at least worked in Cook County. Nearly two years later, on November 29, 2000, Madison County granted Conrail’s alternative request to transfer the case to Cook County. In the meantime, the parties had proceeded with discovery.

On June 18, 2002, Conrail filed its second forum non conveniens motion, which was based on its recent discovery of the negligence action that was pending in Indiana against Steiner’s estate. The grant or denial of a forum non conveniens motion is a discretionary ruling (Ferguson v. Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 70, 704 N.E.2d 830, 836 (1998)), and ordinarily, once a judge has made a discretionary ruling, the ruling will not be disturbed by a judge of coordinate jurisdiction unless there is a change of circumstances or additional facts that warrant such action. W.R. Grace & Co. v. Beker Industries, Inc., 128 Ill. App. 3d 215, 221, 470 N.E.2d 577, 583 (1984) (indicating a “change in circumstances of the parties relating to forum non conveniens principles” justifies renewal of a challenge to forum). Conrail argued Eads’ choice of forum demonstrated that even she believed Indiana was the appropriate forum to redress her personal injuries, and that the imposition of sanctions pursuant to Supreme Court Rule 137 was warranted because Eads had been concealing the existence of her Indiana suit. 155 Ill. 2d R. 137. The circuit court’s March 28, 2003, order denying Conrail’s motion does not specify the court’s reasoning; however, the hearing transcript discloses that the Cook County judge was “concerned]” that the Madison County judge had already determined there were sufficient contacts with Illinois to keep the case in Illinois, and that the only new development was the discovery of Eads’ suit against Steiner, which the court did not believe had been wilfully concealed from Conrail.

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Eads v. Consolidated Rail Corp., 847 N.E.2d 601, 365 Ill. App. 3d 19, 301 Ill. Dec. 591, 2006 Ill. App. LEXIS 192 (Ill. Ct. App. 2006).

847 N.E.2d 601 (Eads v. Consolidated Rail Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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