Insurer seeking transfer out of Madison Co. based on 'forum shopping,' denied

By Heather Isringhausen Gvillo | Feb 27, 2014

Madison County Circuit Judge William Mudge filed an order on Feb. 18 denying an auto insurance company’s motion to transfer venue on the doctrine of forum non conveniens.

“Simply put, defendant has not demonstrated that this case presents exceptional circumstances or ‘weighty reasons’ in the interest of justice that require transfer from Madison to Macoupin County, and as such, the motion to transfer is hereby denied," Mudge wrote in his order. "This court has previously granted forum non conveniens transfers, but the movants in those cases presented this court with compelling reasons to do so that are absent here."

According to the three-count lawsuit filed on May 9, Robert Cunningham claims he filed an insurance claim for damages he sustained in a collision on May 12, 2011. An underinsured driver collided with his 2000 Ford Ranger, resulting in neck, head and body injuries.

Cunnginham alleges he should have received up to $250,000 for his injuries based on the insurance policy with defendant Auto-Owners Insurance Company. He claims his insurer failed to pay him the benefits he was entitled to and failed to agree to arbitration or to name an arbitrator for him, the suit states.

Auto-Owners Insurance Company filed its motion to transfer through attorneys Beth C. Boggs and Michael J. Lach of Boggs, Avellino, Lach & Boggs in St. Louis on June 12, 2013.

The insurer claims Macoupin County is proper because it’s where the policy was executed, where Cunningham resides and where the accident occurred.

“’When a plaintiff is foreign to the forum chosen in the action that gives rise to the litigation did not occur in the chosen forum, it is reasonable to assume that the plaintiff engaged in forum shopping to suit his individual interest, a strategy that is contrary to the purpose that is behind the venue rules,’” the motion stated.

Mudge stated that the plaintiff in the breach of contract and declaratory judgment suit argues that Madison County is appropriate because the defendant does business here and local residents are Auto-Owners Insurance Company policy holders "or share the roads with them.”

Mudge wrote that though the plaintiff deserves less deference outside his county of residence, his choice of forum should “rarely be disturbed” and only when a defendant can prove “exceptional circumstances.”

“And in a situation where the competing counties adjoin, as they do here, the totality of the public and private interest factors must strongly favor transfer and the plaintiff’s chosen forum should only be disturbed for weighty reasons,” Mudge stated. “It is a difficult standard for the defendant to meet, especially when it involves adjoining counties, where ‘the battle over forum results in a battle over the minutiae.’”

In his order, Mudge quoted Langenhorst v Norfolk Southern, stating that “’in most instances, the plaintiff’s choice [of forum] will prevail and the inconvenience factors attached to such a forum do not greatly outweigh the plaintiff’s substantial right to try the case in the chosen forum.’”

He continued to say the Illinois Supreme Court established that trial courts should consider all relevant private and public interest factors in their analyses.

Private factors include:

- Convenience of the parties

- Relative ease of access to sources of testimonial, documentary and real evidence

- Availability of compulsory process to secure attendance of unwilling witnesses

- Cost to obtain attendance of willing witnesses

- Possibility of viewing the premises, if appropriate

- All other practical considerations that make a trial easy, expeditious and inexpensive

Public factors include:

- Administrative difficulties caused when litigation is handled in congested venues instead of being handled at its origin

- Unfairness of imposing jury duty upon residents of a community with no connection to the litigation

- Interest in having local controversies decided locally

“In weighing these factors this court concludes that the defendant has not met its burden that the private and public factors strongly favor transfer to Macoupin County,” Mudge wrote.

Mudge stated that the fact that the accident occurred in and the contract was executed in Macoupin County “has little to do with” insurance contract interpretation and enforcement.

According to the order, lawsuits filed against insurance companies due to breach of contract are considered transitory actions and can be brought in whatever jurisdiction the parties may obtain.

Auto-Owners Insurance Company filed an affidavit from branch claims representatives advising the court that the defendant does not arbitrate underinsured motorist claims.

However, the motion to transfer and the affidavit do not indicate why Macoupin County is a more convenient venue, according to Mudge's order.

“At best, defendant wishes this court to speculate that Macoupin County is more convenient merely because the underlying auto accident occurred, and the contract at issue, was executed in Macoupin County. Nor did defendant demonstrate that the availability of compulsory process to secure the attendance of witnesses and the cost associated with obtaining their attendance favors Macoupin County,” Mudge wrote.

Auto-Owners Insurance Company also failed to indicate how transfer of venue would make the case easier, more expeditious or less expensive, the order states.

“Simply alleging it will cost Madison County money and resources, and unfairly burden residents of this county with jury duty because both the underlying accident and the policy of insurance was procured in another county is unavailing,” Mudge wrote.

Cunningham seeks a judgment of more than $100,000, plus costs and damages of $60,000 or six percent of the amount the court finds Cunningham is entitled to receive due to the defendant’s refusal to pay.

He also asks the court to name Tom Falb as his arbitrator.

Samuel A. Mormino Jr. of Mormino, Velloff and Snider in Alton represents Cunningham.

Madison County Circuit Court case number 13-L-731

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