Zurich Insurance v. Baxter International, Inc.

JUSTICE FREEMAN,

specially concurring:

I fully agree with and join the majority’s decision to affirm the appellate court’s judgment. The appellate court correctly determined that the trial court abused its discretion by granting a stay of the underlying declaratory judgment action in favor of proceedings filed by defendant in California. I write only to highlight the salient factors that undergird our decision.

The record reveals that Baxter filed its declaratory judgment action in California against Zurich, its insurer, nine days after Zurich filed the instant suit in Illinois. The California action sought a declaration that Zurich and 105 of Baxter’s excess insurers had duties to defend and indemnify Baxter under certain insurance policies against claims of numerous HIV-infected persons. These HIV-infected persons were not parties to the California action and, under California law, they were not considered necessary parties. By the time of this appeal, all, save one, of Baxter’s 105 excess insurers were dismissed as parties from the case. The California action was also stayed, pending resolution of the instant Illinois action.

Zurich’s third-amended complaint in this action named Baxter, Baxter’s excess insurers, and those HIV claimants, 17 in number, over whom Illinois courts could assert personal jurisdiction. The third-amended complaint seeks a declaration that Zurich and Baxter’s excess insurers owe no duties to defend and indemnify Baxter under the same policies against claims of these 17 persons.

The trial court, exercising its discretion, stayed the instant action pursuant to section 2 — 619(a)(3), finding the California action more "comprehensive.” 735 ILCS 5/2 — 619(a)(3) (West 1992). The appellate court vacated the stay, which ruling the majority now affirms.

Section 2 — 619(a)(3) provides that a defendant may move for a dismissal or stay whenever there is "another action pending between the same parties for the same cause.” 735 ILCS 5/2 — 619(a)(3) (West 1992). The provision is designed to avoid duplicative litigation and is to be applied to carry out that purpose. Kellerman v. MCI Telecommunications Corp., 112 Ill. 2d 428, 447 (1986). The "same cause and same parties requirements” are apparently threshold considerations to granting section 2 — 619(a)(3) relief. See A.E. Staley Manufacturing Co. v. Swift & Co., 84 Ill. 2d 245, 252-54 (1980); Kellerman, 112 Ill. 2d at 447; see also Perimeter Exhibits, Ltd. v. Glenbard Molded Binder, Inc., 122 Ill. App. 3d 504, 509 (1984) (failure to meet section 619(a)(3) "same parties” requirement fatal to request for such relief).

Nonetheless, even if the dual requirements are met, relief under section 2 — 619(a)(3) is not mandated. The court’s decision to grant relief or allow multiple actions to proceed in different jurisdictions remains a matter of discretion. Kellerman, 112 Ill. 2d at 447. The factors a court should consider in making that decision include: comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum. Kellerman, 112 Ill. 2d at 447-48.

The present case presents a situation where at least one of the dual threshold requirements for section 2 — 619(a)(3) relief was not met. The Illinois and California actions do not involve the same parties. The California action is between only Baxter, Zurich and one of Zurich’s excess insurers; the Illinois action names these parties and also includes 17 of the underlying claimants as well as an entire group of Baxter’s excess insurers. Further, this is not a case where the same parties requirement should be relaxed. See Catalano v. Aetna Casualty & Surety Co., 105 Ill. App. 3d 195, 197 (1982) (requirement relaxed where parties in close privity); Perimeter Exhibits, Ltd. v. Glenbdrd Molded Binder, Inc., 122 Ill. App. 3d at 508 (requirement relaxed where, parties in one action are nominal parties, or their claims are not in issue); People ex rel. Fahner v. Climatemp, Inc., 101 Ill. App. 3d 1077, 1084 (1981).(parties are same legal entity). This point is demonstrated,by the fact that, under California law, the unnamed; underlying claimants’ third-party rights to a recovery under the policy could not be detérmined in the California action. Any declaratory judgment regarding Zurich’s duty to indemnify Baxter for the underlying claims would nót ..be res judicata as against those claimants. See Shapiro, v. Republic Indemnity Co. of America, 52 Cal. 2d 437, 341 P.2d 289 (1959). In the Illinois action, by contrast, Zurich’s obligation to fund Baxter’s defense, and payment of these particular claims would be. adjudicated. ' . ¡

In addition to the. failure, of thi< requirement; discretionary factors which weigh against granting sec-' tion 2 — 619(a)(3) relief aré readily apparent here. The California court repeatedly expressed frustration with the fact that our circuit court would not. assert its, jurisdiction over the matter. The California court stated, inter alia: • • . ; •

"This is an Illinois contract, entered in by Illinois parties, signed in the state of Illinois *** [flor some reason Illinois' courts either don’t want to, won’t,. can|t, choose , not to or whatever. For the last year and half they have beeii deciding through the courts whether ,or not' fhéy are. [going] to go take jurisdiction of this case or, not, and it, really belongs in Illinois. V . ' j
* * *
[I am b]aby sitting this thing until, Illinois finally decides they have an interest iii the case.”. •

The California action was also stayed, pending resolution of the case here in Illinois. Clearly, the California court, for the sake of comity, would have been willing to defer to the circuit’s judgment here. That willingness and the absence of the same parties in each suit was indicative that a stay of the Illinois action was unnecessary to prevent a multiplicity of actions. Moreover, it cannot be said that the prior-in-time Illinois action was filed to vex or harass Baxter. In deciding whether to grant or deny the stay, the trial court should have considered whether this factor argued for a stay of the Illinois action due to the actions or animus of Zurich in bringing the suit. Baxter’s motivation in bringing the California action is really not critical to the determination of whether this Illinois action was properly stayed. The majority need not belabor that point. Clearly, however, Baxter was attempting to speedily advantage itself by forum shopping when it filed in California nine days after Zurich filed here.

Another discretionary factor that should have been considered was the likelihood that the Illinois parties would have realized some manner of complete relief via the California action. Again, clearly, they could not. The California action would have adjudicated Baxter’s rights under its policy with Zurich and undér one excess layer policy with another insurer' Such judgment would afford no relief to Baxter’s remaining excess insurers and the 17 claimants in the Illinois action. Furthermore, any judgment between Zurich and Baxter in California would clearly have no res judicata effect against the remaining excess insurers and 17 claimants named as parties here.

In conclusion, the trial court abused its discretion in granting a stay of the instant action because a threshold requirement for section 2 — 619(a)(3) relief was not met, the two actions did not involve the same parties, and not one discretionary factor argued in any way for such relief.

JUSTICE McMORROW joins in this special concurrence.