dissenting:
Because I conclude that recognition of the Indiana sovereign immunity statute violates Illinois’ public policy of compensating injured persons, I respectfully dissent. The majority admits that our State constitution reflects a policy to provide every injured person with a remedy. (Ill. Const. 1970, art. I, §12.) Pursuant to this policy, Illinois allows full compensation in its courts for persons injured as a result of the negligence of residents or nonresidents. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 209(a); see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 621.) Schoeberlein resides in and the injury occurred in Illinois. Illinois could hardly have any greater interest than it does here in providing an injured person with a remedy.
Indiana, through Purdue, voluntarily sold an allegedly defective product to a company in Illinois and the product injured an Illinois resident. Indiana conducted itself in Illinois as if it were any other nonresident business. Indiana chose to sell its product outside its boundaries, thereby taking the risk that the product would injure someone outside its borders. The California court in Hall v. University of Nevada stated:
“We have concluded that sister states who engage in activities within California are subject to our laws with respect to those activities and are subject to suit in California courts with respect to those activities. When the sister state enters into activities in this state, it is not exercising sovereign power over the citizens of this state and is not entitled to the benefits of the sovereign immunity doctrine as to those activities unless this state has conferred immunity by law or as a matter of comity.” (Hall v. University of Nevada (1972), 8 Cal. 3d 522, 524, 503 P.2d 1363, 1364, 105 Cal. Rptr. 355, 356, aff’d (1979), 440 U.S. 410, 59 L. Ed. 2d 416, 99 S. Ct. 1182.)
I find the reasoning in Hall v. University of Nevada persuasive and applicable to the case at bar. Indiana elected to do business and perform activities in Illinois and, therefore, subjected itself to the risk of liability in Illinois. Consequently, Indiana should not be allowed to shield itself from liability in Illinois.
The majority is concerned that a contrary decision would jeopardize Illinois’ own sovereign immunity. The majority asserts that Indiana and Illinois have similar limited sovereign immunity doctrines. Illinois has not waived its sovereign immunity completely, the majority argues, because Illinois wants “to protect the State from interference in the performance of governmental functions and to preserve control over the government’s fisc.” As the majority notes, Illinois can only be fully protected from suits in other States if the other States recognize Illinois sovereign immunity and refuse jurisdiction over suits brought against Illinois. No direct harm to Illinois sovereign immunity would occur if we allowed Schoeberlein’s suit because Illinois is not a party to the suit. Any harm would only be indirect in that other States may not, likewise, recognize Illinois sovereign immunity. After Nevada v. Hall (1979), 440 U.S. 410, 59 L. Ed. 2d 416, 99 S. Ct. 1182, however, other States are not obligated to recognize Illinois sovereign immunity (see Struebin v. State (Iowa 1982), 322 N.W.2d 84 (Iowa refused to recognize Illinois sovereign immunity)), even if Illinois recognizes their immunity.
The majority quotes at length Justice Rehnquist’s dissenting opinion in Nevada v. Hall. In his dissent, Rehnquist discussed the problems that might arise if States refused to honor each other’s immunity statutes. (Hall, 440 U.S. at 443, 59 L. Ed. 2d at 439, 99 S. Ct. at 1199-1200.) The holding of Nevada v. Hall, however, is that a forum State can choose not to recognize another State’s immunity if the forum State decides that such recognition would violate the public policy of the forum State. (Hall, 440 U.S. at 425-27, 59 L. Ed. 2d at 428-29, 99 S. Ct. at 1190-91.) Thus, the majority in Nevada v. Hall decided that the forum State’s public policy considerations could take precedence over the forum State’s concerns with harmonious interstate relations. Hall, 440 U.S. at 426, 59 L. Ed. 2d at 429, 99 S. Ct. at 1191.
The majority states that by recognizing Indiana sovereign immunity Schoeberlein is not left without redress because he could have filed suit in Indiana. Schoeberlein simply chose the wrong forum. Thus, the majority concludes, Illinois’ public policy of compensating the injured is not violated. The actual result of the majority’s decision, however, completely denies Schoeberlein any recovery. In Indiana, an injured person has to provide the State with notice of the injury within 180 days of the occurrence of the injury. (Ind. Code Ann. 34 — 4 — 16.5—6 (West 1987).) Schoeberlein can no longer seek redress in Indiana because of the 180-day notice requirement.
The majority emphasizes that had Schoeberlein sued an instrumentality of Illinois in Illinois, he could have only brought suit in the Court of Claims. He could not have filed suit against an instrumentality of Illinois in an Illinois circuit court. I find that distinction irrelevant. Indiana does not have a court of claims, so if Schoeberlein filed suit in Indiana, an Indiana circuit court would have tried his case. The Court of Claims has jurisdiction primarily over suits brought against an instrumentality of the State of Illinois. (Ill. Rev. Stat. 1987, ch. 37, par. 439.8.) Because Indiana is not an instrumentality of lilinois, Schoeberlein can properly file suit against Indiana in an Illinois circuit court.
Although Illinois has retained its sovereign immunity, that immunity is limited. Illinois has a substantial interest in compensating its injured citizens. (Ill. Const. 1970, art. I, §12; Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 209(a), 2 — 621.) I agree with the Colorado court that “where the injured party is a citizen of this state, injured in this state and sues in the courts of this state, there is no immunity, *** as a matter of comity, covering a sister state’s activities in this state.” (Peterson v. State (Colo. App. 1981), 635 P.2d 241, 243.) As the majority acknowledges, the Colorado court in Peterson v. State would not acknowledge Texas sovereign immunity even though Colorado public entities would have had immunity under similar circumstances. (See Peterson, 635 P.2d at 242.) In addition, in Ehrlieh-Bober & Co. v. University of Houston (1980), 49 N.Y.2d 574, 404 N.E.2d 726, 427 N.Y.S.2d 604, New York did not recognize Texas sovereign immunity even though New York and Texas had similar sovereign immunity policies. (See Ehrlich-Bober, 49 N.Y.2d at 584, 404 N.E.2d at 732-33, 427 N.Y.S.2d at 610-11 (Jones, J., dissenting).) Thus, even assuming Illinois and Indiana have similar immunity policies, Illinois need not recognize Indiana sovereign immunity because Illinois has a strong public policy of protecting and compensating its injured citizens. In light of Nevada v. Hall, such a decision would not harm Illinois sovereign immunity. Consequently, I would affirm the decision of the appellate court.