Injury 'could have' happened in Madison County, Maag argues in appeal

Steve Korris Dec. 21, 2007, 3:23am

MOUNT VERNON - Madison County Circuit Judge Daniel Stack erred in sending a Tennessee trucker with a Tennessee injury to a Tennessee court, according to Thomas Maag, because the injury could have happened in Madison County.

In a Dec. 12 appeal to the Fifth District in Mount Vernon, Maag wrote that his client's injury "could just as easily occurred in some other state like Missouri or Illinois…"

"It was fortuitous that the injury occurred in Tennessee…," Maag wrote.

Maag represents Gary Clark of Tennessee, who claims he suffered an injury while loading vehicles on a trailer, and his wife Debbie Clark.

Gary Clark worked for Cassens Transport of Edwardsville, but under Illinois workers compensation law he could not file a personal injury suit against his employer.

In 2004 he sued trailer maker Cottrell Inc., of Georgia, in Madison County. He also sued Cassens Corporation, a holding company of Cassens family businesses.

Cassens Corporation moved for summary judgment, and Stack granted it.

Cottrell moved to dismiss for refiling in a more convenient forum, and Stack granted it.

Stack ruled that Tennessee should take the case because Tennessee law would apply.

Maag moved for reconsideration and Stack denied it.

In July Maag appealed Stack's forum order, the order in favor of Cassens Corporation, and every other order Stack had signed.

Maag's Dec. 12 brief asserted that there was "minimal relationship between Tennessee and the parties, and the occurrence, as the only thing that happened there is the injury."

He disputed that Tennessee law applied but added that if it did, an Illinois court could apply Tennessee law.

Maag wrote, "Nothing in the record in this case shows sufficient contacts between any state other than Illinois."

The trailer was sold in Glen Carbon to an Illinois citizen and leased to an Illinois corporation, Maag wrote, and it bore Illinois license plates.

"Defendants argue that the injury occurred in Tennessee, that plaintiffs are Tennessee residents and that plaintiff often worked out of the Cassens Smyrna terminal," he wrote, "but offer nothing else to sustain their claim that Tennessee law applies."

Maag accused Stack of acting as judge and jury when he dropped Cassens Corporation from the case.

Cassens Corporation is liable for Clark's injury, Maag wrote, under a theory of "direct participant liability."

The theory, according to Maag, holds a parent company liable for acts of subsidiaries.

Maag wrote, "…direct liability is not a new concept on the tort scene, though perhaps not one that the current court was familiar with."

For proof that Madison County justice ought to apply to Cassens Corporation, Maag stated that the corporation had an office across the county line, in Staunton.

He alleged that the corporation leased the office to avoid Madison County lawsuits.

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