dissenting:
I respectfully dissent. The majority correctly state that our standard of review of the trial court’s grant of Underwriter’s section 2 — 619(a)(3) motion to dismiss is whether the trial court abused its discretion in doing so. Under the abuse of discretion standard, the role of the reviewing court is not to substitute its judgment for that of the trial court, or even to determine whether the trial court acted wisely. Members Equity Credit Union v. Duefel, 295 Ill. App. 3d 336, 342 (1998). As our supreme court has pointed out, this standard has been recognized as “ ‘the most deferential standard of review available with the exception of no review at all.’ ” People v. Coleman, 183 Ill. 2d 366, 387 (1998), quoting M. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 469, 480 (1988). Because we are to reverse only when no reasonable person could adopt the view taken by the lower court (In re Marriage of Getautus, 189 Ill. App. 3d 148 (1989)), I would affirm the trial court’s order of dismissal pursuant to section 2 — 619(a)(3). 735 ILCS 5/2 — 619(a)(3) (West 2002).
In reversing the trial court, the majority wholly rely upon the holding in A.E. Staley Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245 (1981). I agree with the trial court’s extremely well-reasoned decision in which the court found that the facts of the present case bear little relation to those found in Staley. The parties in Staley filed their respective lawsuits on the same day. Underwriters filed its declaratory action in London Commercial Court on November 9, 2001, and Combined filed the instant suit in Illinois on September 11, 2003, almost two years later. Combined seeks damages and a declaration that it is entitled to indemnification under the “Reinsurance Contract” — the declaration sought is identical to the relief sought by the Underwriters in the London court. While Combined’s delay in filing suit in Illinois may be attributable to a legitimate belief that it was required to file suit in the federal district court in New York, that belief proved to be erroneous and Combined’s action was dismissed for lack of jurisdiction. This dismissal was then affirmed by the federal court of appeals. Combined Insurance Co. of America v. Certain Underwriters at Lloyd’s London, 75 Fed. Appx. 799 (2nd Cir. 2003).
In Staley, the trial court found that section 48(l)(c) (the predecessor to section 2 — 619(a)(3)) required it to dismiss the action before it. The supreme court reversed, holding that the circuit court had discretion in ruling upon motions to dismiss based on the existence of a suit pending in a different jurisdiction which arose out of the same operative facts. Consequently, the circuit court failed to conduct an appropriate analysis of the situation. Staley, 84 Ill. 2d at 253. In the instant case, the trial court was well aware that it was within its discretion to stay Combined’s action, dismiss it or allow it to proceed simultaneously with the declaratory action in London.
The majority also hold that the trial court failed to give due consideration to Staley’s discussion of whether a counterclaim would be necessary to receive complete relief. The majority hold that, because the London action is a declaratory action, if “the London court ruled in Combined’s favor, in order for Combined to receive complete relief in that foreign jurisdiction, it would be required to file a counterclaim seeking damages.” 356 III. App. 3d at 757.
The trial court addressed this assertion as follows:
“In the A.E. Staley case, there was a concern that there would be a bar of a cross-complaint. Here we have a coverage issue, two issues, two coverage issues being brought to a court. Once the declaratoiy relief is issued, the payment, if that’s what the issue is, if that’s the way it goes, would follow, or nonpayment if that’s the way the decision would go would follow. There is no need for a cross-claim here in this case. The issues will be decided in the declaratory judgment part of the case.”
I agree with the reasoning of the trial court. Combined would only need to file a counterclaim if Underwriters were to lose its declaratory action and then refuse to pay out on its policy.
The majority also base their decision on the fact that it is “unclear” whether Combined might be entitled to damages under section 155 of the Illinois Insurance Code (215 ILCS 5/155 (West 2000)). 356 Ill. App. 3d at 757. The majority say this will be an issue “if it is determined that Underwriters has vexatiously delayed bringing this case to a close.” 356 Ill. App. 3d at 757. As I previously pointed out, Underwriters filed a declaratory action on November 9, 2001. Combined filed its suit in the Federal district court in New York on November 13, 2001. During the almost two years that Combined’s action was pending in federal court, Underwriter’s declaratory action was stayed by agreement of the parties and the court in London. After the federal courts dismissed its suit for lack of jurisdiction, Combined filed the instant suit in Illinois on September 11, 2003. To suggest that Underwriters’ actions have vexatiously delayed this case so as to fall under the penumbra of Rule 155 borders on the absurd.
The majority do not address the most compelling reason to affirm the trial court’s dismissal: the risk of inconsistent judgments being issued in the two pending cases. This case involves the interpretation of a very narrow issue — the definition of the phrase “Authorized Business Trip” as that term is used in the Aon policy. The declaratory action before the London commercial court will certainly determine that definition and that court will then determine Underwriters’ obligations under the “Reinsurance Contract” between Aon and Underwriters. The majority reverse the trial court’s dismissal but fail to provide any guidance to the circuit court which will receive this case on remand. If the majority believe that the circuit court may rule on Combined’s request for a declaration that it is entitled to indemnification under the “Reinsurance Contract” — even though that identical issue has been pending in the London commercial court for more than three years — the majority should expressly make that holding and explain its reasoning. This entire issue is obviated by the trial court’s order of dismissal, which I would affirm.