{ "id": 45672, "name": "WHIRLPOOL CORPORATION, Plaintiff-Appellant, v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON, Defendant-Appellee", "name_abbreviation": "Whirlpool Corp. v. Certain Underwriters at Lloyd's", "decision_date": "1998-03-19", "docket_number": "Nos. 1\u201497\u20142306, 1\u201497\u20144082 cons.", "first_page": "828", "last_page": "839", "citations": [ { "type": "official", "cite": "295 Ill. App. 3d 828" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "633 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "261 Ill. App. 3d 165", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5371340 ], "year": 1994, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/261/0165-01" ] }, { "cite": "377 N.E.2d 853", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "61 Ill. App. 3d 45", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3345523 ], "year": 1978, "pin_cites": [ { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0045-01" ] }, { "cite": "635 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5366528 ], "year": 1994, "pin_cites": [ { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0611-01" ] }, { "cite": "674 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295617 ], "year": 1996, "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0459-01" ] }, { "cite": "537 N.E.2d 1030", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499088 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0677-01" ] }, { "cite": "456 N.E.2d 98", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "98 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121605 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/98/0359-01" ] }, { "cite": "490 N.E.2d 694", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "111 Ill. 2d 495", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166328 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/111/0495-01" ] }, { "cite": "537 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499180 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0739-01" ] }, { "cite": "636 N.E.2d 1037", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 299", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680684 ], "year": 1994, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0299-01" ] }, { "cite": "566 N.E.2d 718", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "\"Although a plaintiffs choice of forum is generally accorded great weight and will not be disturbed unless the balance of factors strongly favors defendant, a plaintiffs choice is entitled to less deference when plaintiff chooses a foreign forum\"" } ], "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 601", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2555640 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "605", "parenthetical": "\"Although a plaintiffs choice of forum is generally accorded great weight and will not be disturbed unless the balance of factors strongly favors defendant, a plaintiffs choice is entitled to less deference when plaintiff chooses a foreign forum\"" }, { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0601-01" ] }, { "cite": "607 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "153 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738037 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "553" }, { "page": "555" }, { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0550-01" ] }, { "cite": "683 N.E.2d 929", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "291 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456204 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "314" }, { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0311-01" ] }, { "cite": "645 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "163 Ill. 2d 323", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 478007 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "342-43" }, { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0323-01" ] }, { "cite": "579 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "144 Ill. 2d 306", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592505 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "310" }, { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0306-01" ] }, { "cite": "535 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "179 Ill. App. 3d 1001", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2609545 ], "year": 1989, "pin_cites": [ { "page": "1005" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/179/1001-01" ] }, { "cite": "380 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "63 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3338391 ], "year": 1978, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/63/0057-01" ] }, { "cite": "588 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 477", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5246207 ], "year": 1992, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/0477-01" ] }, { "cite": "543 N.E.2d 119", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 206", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2668976 ], "year": 1989, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0206-01" ] }, { "cite": "427 N.E.2d 563", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "86 Ill. 2d 291", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5468706 ], "year": 1981, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0291-01" ] }, { "cite": "543 N.E.2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "187 Ill. App. 3d 388", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2669025 ], "year": 1989, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/187/0388-01" ] }, { "cite": "312 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935040 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "addressing pollution exclusion clauses, but not \"sudden and accidental\" language" }, { "parenthetical": "addressing pollution exclusion clauses, but not \"sudden and accidental\" language" } ], "opinion_index": 0, "case_paths": [ "/ark/312/0128-01" ] }, { "cite": "476 N.W.2d 392", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1991, "opinion_index": 0 }, { "cite": "438 Mich. 197", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 8717084 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/mich/438/0197-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "520 N.E.2d 368", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "121 Ill. 2d 278", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201960 ], "year": 1988, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0278-01" ] }, { "cite": "662 N.E.2d 467", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "Whirlpool I" } ], "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 175", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156763 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "182", "parenthetical": "Whirlpool I" }, { "page": "182" }, { "page": "183" }, { "page": "182", "parenthetical": "\"the fact that the contract was entered into in Illinois\"" }, { "page": "181" }, { "page": "181" }, { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0175-01" ] }, { "cite": "42 U.S.C.A. \u00a7 9601", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "et seq.", "parenthetical": "West 1995 & Supp. 1997" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1147, "char_count": 26870, "ocr_confidence": 0.764, "pagerank": { "raw": 1.336630060713716e-07, "percentile": 0.6302467827274872 }, "sha256": "f7139dc1c2c4e7f7041cf128d889fb15566ad7d52efd58ece6728243949a8f20", "simhash": "1:3a34dbb7456ebca6", "word_count": 4226 }, "last_updated": "2023-07-14T18:51:11.490834+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WHIRLPOOL CORPORATION, Plaintiff-Appellant, v. CERTAIN UNDERWRITERS AT LLOYD\u2019S LONDON, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nThere is nothing unusual about litigants jockeying for position. Sometimes position matters, sometimes it does not. Here, for four years the litigants have waged a fierce battle over which forum will host their pollution insurance coverage dispute. Here, apparently, position matters. We affirm the trial judge\u2019s dismissal of the lawsuit on forum non conveniens grounds.\nFACTS\nIn the early 1970s, Whirlpool, a Delaware corporation with its business headquarters in Michigan, sought excess insurance coverage on the \u201cLondon Market.\u201d It contacted Bowes & Company (Bowes), an independent Illinois broker, which \u201cplaced\u201d insurance in London. After meeting with Whirlpool representatives in Michigan and discussing Whirlpool\u2019s insurance requirements, Bowes contacted J.H. Minet & Company, Ltd. (Minet), a London insurance broker, with this information.\nMinet, in turn, contacted the \u201cLondon Market\u201d to find underwriters willing to \u201cobtain the risk\u201d of insuring Whirlpool. Minet found \u201clead underwriters\u201d Janson Green, Ltd., and Certain Companies per H.S. Weavers Underwriters (Agencies) Ltd. in Lloyd\u2019s insurance syndicate to provide coverage for Whirlpool. The underwriters evaluated Whirlpool\u2019s risk and conveyed their proposed terms to Minet. Minet conveyed these terms to Bowes, and Bowes conveyed these terms to Whirlpool. Whirlpool agreed to these terms.\nThen the communication chain reversed: Whirlpool contacted Bowes, who contacted Minet, who contacted Lloyd\u2019s underwriters. According to Bowes representative, Arthur Travis, Whirlpool\u2019s coverage began when Lloyd\u2019s confirmed: \u201c100 percent placed with underwriters and London market as per our terms.\u201d\nTravis described this long-distance procedure in his deposition:\n\u201cThe underwriters [at Lloyd\u2019s], the insurers, would \u2014 they have the risk and they would present terms saying they would write the risk with these terms and conditions and with this cost. That would come to the London broker [Minet] who would put it in form to send to us saying here is the underwriters\u2019 position.\nWe [Bowes], in turn, go to the insured, Whirlpool and say here are the terms that London is willing to entertain to insure us. Whirlpool would then make a decision if they wanted those terms or not. If they did, they would have me place it on an effective date.\nI would cable London and say, \u2018The insured has given us an order to place those terms,\u2019 and then London would come back with a cable saying it has been bound and placed, and that would be conveyed back to the insured.\u201d\nAfter Lloyd\u2019s confirmation, Minet sent its \u201ccover note\u201d summarizing Whirlpool\u2019s policy and terms to Bowes, and Bowes sent its own cover note to Whirlpool. Then Minet drafted the formal policy. In a 1971 letter to Whirlpool, Bowes representative Frank Hunter noted, \u201cThe lead Underwriter has to approve the final policy forms ***.\u201d According to Travis, formal policies to replace interim cover notes were \u201c [m] anufactured in London\u201d by either Lloyd\u2019s or Minet and sent to Bowes. Lloyd\u2019s underwriter Peter Lowsley-Williams, in his affidavit, agreed: \u201cThe policies were negotiated and issued in London. The policy documents in the ordinary course of business would have been issued in London and sent by the London broker [Minet] to the American broker [Bowes] and from there to the Assured [Whirlpool].\u201d Formal policies often followed cover notes two years after the policies\u2019 effective dates.\nDuring their relationship Whirlpool and Lloyd\u2019s never communicated directly, only through Bowes and Minet, respectively. According to Travis, Bowes did not act as an agent for either Whirlpool or Lloyd\u2019s but, rather, as a conduit for information: \u201cWe would present to the insured and to the insurer the information.\u201d Travis said Bowes did not have the authority to bind Lloyd\u2019s into insuring Whirlpool.\nAdditionally, Lloyd\u2019s public relations brochure said: \u201cA Lloyd\u2019s broker [presumably Minet] is not an insurance agent. He does not represent the underwriters the same way as an insurance company agent. He is, first and foremost, the representative of the insured [Whirlpool] ***.\u201d However, in his deposition Whirlpool\u2019s insurance manager, Jake Paschall, said Whirlpool considered Bowes an agent of Lloyd\u2019s underwriters: \u201c[A]s far as we were concerned Bowes spoke for the insurers.\u201d\nThe policy became effective on February 15, 1971. Under the policy Whirlpool would make payment of premiums and provide notice of occurrences to Bowes. However, Lowsley-Williams\u2019 affidavit disputed the significance of Bowes role: \u201c[T]he designation of Bowes & Company was made as an accommodation to the Assured so that the Assured could make payment of premium and give notice of occurrences to one entity rather than several insurers throughout the London Market.\u201d Lloyd\u2019s underwriter Peter Wilson, in his affidavit, corroborated Lowsley-Williams\u2019 account. Additionally, Bowes issued endorsements only after confirmation from Lloyd\u2019s. Through several renewals, and some changes, the policy remained in effect through May 31, 1977.\nBeginning in 1974, Whirlpool\u2019s Fort Smith Division disposed of its solid and liquid waste at the industrial waste control (IWC) facility near Fort Smith, Arkansas. Whirlpool closed the Fort Smith IWC facility in 1977. In 1982, the United States Environmental Protection Agency named the Fort Smith facility a \u201csuperfund\u201d site and Whirlpool a potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C.A. \u00a7 9601 et seq. (West 1995 & Supp. 1997)). By the 1990s, Whirlpool had incurred more than $5 million in investigation and remediation (cleanup) costs at the Fort Smith IWC facility.\nIn 1988, Whirlpool filed suit in Michigan state court against its primary insurers. Whirlpool eventually settled this suit. Knowing its primary insurance would not cover the cleanup costs, Whirlpool notified Lloyd\u2019s an occurrence might have happened while Lloyd\u2019s still provided coverage in the 1970s. In 1989, Lloyd\u2019s reserved its rights under the policies.\nOn April 3, 1993, Whirlpool filed a declaratory judgment action in the circuit court of Cook County against Lloyd\u2019s. Whirlpool alleged Lloyd\u2019s failed to fulfill its contractual obligation to provide excess coverage for the 1970s occurrence which necessitated the cleanup costs. Lloyd\u2019s, represented here by one of its underwriters, Garety and Companies (Garety), filed a forum non conveniens motion to dismiss.\nOn January 11, 1994, Judge Edward Hofert granted this motion. The court said:\n\u201c[I]f the laws of the State of Illinois apply, they can be applied by other courts other than this court. Plaintiff [Whirlpool] is not a resident of this State. The defendant [Garety] is not. The only issue that possibly could conceivably [ajffect Illinois has to do with agency, and I see no reason why that cannot be resolved otherwise. And whether or not the laws of this state can be applied, can be applied by any state court. I see no compelling reason for this state to become involved in this case.\u201d\nIn denying Whirlpool\u2019s motion to reconsider, the court again noted Whirlpool was not an Illinois resident and Illinois had \u201cplenty of crowded courts and plenty of cases.\u201d\nWhirlpool appealed, and this court vacated and remanded the forum non conveniens dismissal, concluding:\n\u201cThere is no indication in this record that the trial judge weighed the various private and public factors that enter into a forum non conveniens analysis. ***\nWe find the trial court abused its discretion because it failed to weigh the relevant factors when deciding whether \u2018another forum *** can better serve the convenience of the parties and the ends of justice.\u2019 \u201d Whirlpool Corp. v. Certain Underwriters at Lloyd\u2019s London, 278 Ill. App. 3d 175, 182, 662 N.E.2d 467 (1996) (Whirlpool I), quoting McClain v. Illinois Central Gulf R.R. Co., 121 Ill. 2d 278, 288, 520 N.E.2d 368 (1988).\nOn remand, Whirlpool filed an initial motion to reconsider. Judge Margaret McBride entered and continued this motion and instead granted Garety\u2019s motion to reopen discovery limited to \u201cforum non conveniens issues.\u201d Garety filed another forum non conveniens motion to dismiss. On May 28, 1997, Judge Ronald Riley granted Garety\u2019s motion.\nJudge Riley, saying he was \u201cengaged in the weighing process that the cases talk about,\u201d considered the following private and public factors: location of witnesses and documentary evidence; the asserted locations of contract negotiation and execution; the interest of Michigan courts; and the burden of jury service on Cook County residents. The court agreed with Garety in finding the contract was not entered into in Illinois. The court also noted the residence of the parties. Although conceding \u201cI wouldn\u2019t know where to transfer it to, folks,\u201d the court concluded: \u201cIllinois *** has no interest in this litigation.\u201d (In a prior order, the court denied Whirlpool\u2019s motion to strike Lowsley-Williams\u2019 and Wilson\u2019s affidavits; Whirlpool did not appeal this order.)\nWhirlpool filed another motion to reconsider before the trial court. Whirlpool also filed a petition for leave to appeal the forum non conveniens dismissal under Illinois Supreme Court Rule 306(a)(2). See 155 111. 2d R. 306(a)(2). This court granted Whirlpool\u2019s petition. The trial court denied Whirlpool\u2019s motion to reconsider, and Whirlpool also appealed that order under Rule 301. See 134 Ill. 2d R. 301. This court consolidated these cases.\nOn September 27, 1994, Garety filed a declaratory judgment action against Whirlpool in Michigan federal court. This suit concerned Lloyd\u2019s liability for cleanup costs at the Fort Smith IWC facility and 12 other pollution sites across the country. After the parties had conducted some discovery, Whirlpool filed an abstention motion to stay the federal court proceedings. Initially, the federal court rejected Whirlpool\u2019s motion. However, after Whirlpool I, the federal court stayed Garety\u2019s suit, tentatively noting \u201cthe significant interest that the State of Illinois may have in this dispute relating to insurance contracts potentially subject to Illinois law.\u201d Garety\u2019s federal case remains stayed, pending the outcome of Whirlpool\u2019s second appeal here.\nDECISION\nWhirlpool accuses Garety of forum shopping by filing a federal court lawsuit in Michigan. Garety could level a similar charge at Whirlpool for filing suit in Illinois. As noted in Whirlpool I: \u201cThis dispute represents more than a mere jockeying for position. The stakes are high. The insurance policies contain much-litigated pollution exclusion clauses. There is no coverage unless the spill was \u2018sudden and accidental.\u2019 \u201d Whirlpool I, 278 Ill. App. 3d at 182. The result of this appeal could be outcome determinative: Illinois law might provide coverage (see Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 607 N.E.2d 1204 (1992)); Michigan law might deny coverage (see Upjohn Co. v. New Hampshire Insurance Co., 438 Mich. 197, 476 N.W.2d 392 (1991)). Arkansas courts have not answered this question. See Minerva Enterprises, Inc. v. Bituminous Casualty Corp., 312 Ark. 128, 851 S.W.2d 403 (1993) (addressing pollution exclusion clauses, but not \u201csudden and accidental\u201d language); see also Ratliff Enterprises, Inc. v. American Employers Insurance Co., No. CA97 \u2014 19 (Ark. Ct. App. 1997) (discussing \u201csudden and accidental\u201d language in a nonpollution, insurance context).\nResolution of Whirlpool\u2019s second appeal lies in the answers to two related questions: (1) Did the trial court follow the appellate court\u2019s mandate? And (2) if so, did the trial court abuse its discretion in granting Garety\u2019s forum non conveniens motion to dismiss?\n1. Whirlpool I and Its Mandate\n\u201cThe mandate of a reviewing court is the transmittal of that court\u2019s judgment to the circuit court, which revests the latter with jurisdiction. [Citation.] When a judgment is reversed by a reviewing court, that judgment is final upon all questions decided, and if the cause is remanded, the circuit court can take only such action as conforms to the reviewing court\u2019s judgment. [Citation.] That is, the circuit court may only do those things directed in the mandate; it has no authority to act beyond the mandate\u2019s dictates. [Citation.]\nWhen the circuit court\u2019s action upon remand is inconsistent with the reviewing court\u2019s mandate, it is subject to reversal on appeal.\u201d Mancuso v. Beach, 187 Ill. App. 3d 388, 391, 543 N.E.2d 256 (1989), citing PSL Realty Co. v. Granite Investment Co., 86 Ill. 2d 291, 304, 427 N.E.2d 563 (1981).\nGenerally, the trial court must follow precisely the appellate court\u2019s mandate. In re Marriage of Jones, 187 Ill. App. 3d 206, 215, 543 N.E.2d 119 (1989). However, when the appellate court\u2019s mandate is not specific, the trial court must consult the context of the mandate to determine what further proceedings would comport with the opinion. People ex rel. Bernardi v. City of Highland Park, 225 Ill. App. 3d 477, 482, 588 N.E.2d 427 (1992).\nHere, this court instructed the trial court as follows:\n\u201cFor the foregoing reasons, we vacate the trial court\u2019s order of dismissal and remand the'case for consideration of the defendants\u2019 forum non conveniens motion, consistent with the views expressed in this opinion.\u201d Whirlpool I, 278 Ill. App. 3d at 183.\nWhirlpool contends Judge McBride should not have reopened discovery and Judge Riley should not have allowed Garety to submit new evidence on its renewed forum non conveniens motion to dismiss. When a case is remanded for proceedings consistent with the appellate court\u2019s opinion, \u201cthe only restriction upon the introduction of new evidence in the trial court is that such evidence should neither be inconsistent with the [contents of] our opinion, nor introduce grounds which did not exist at the original hearing.\u201d Glass v. Peitchel, 63 Ill. App. 3d 57, 60, 380 N.E.2d 420 (1978).\nIllinois Supreme Court Rule 187(b) provides: \u201cHearings on motions to dismiss or transfer the action under the doctrine of forum non conveniens shall be scheduled so as to allow the parties sufficient time to conduct discovery on issues of fact raised by such motions.\u201d 107 Ill. 2d R. -187(b). This rule gives the trial court discretion on whether to allow discovery on forum non conveniens issues. See 107 Ill. 2d R. 187, Committee Comments.\nWhirlpool\u2019s \u201ctwo bites at the apple\u201d contention (see Inland Real Estate Corp. v. City of Palatine, 179 Ill. App. 3d 1001, 1005, 535 N.E.2d 42 (1989)) ignores the procedural posture of this case on remand. While this court vacated the dismissal order and remanded for consideration of Garety\u2019s forum non conveniens motion, reopening discovery was appropriate. First, Judge McBride, who replaced Judge Hofert, could not effectively reconsider Garety\u2019s motion without dissecting an unfamiliar record and so exercised her discretion to allow more discovery on Garety\u2019s second motion. Similarly, Judge Riley, who replaced Judge McBride, could not have weighed the forum non conveniens factors without examining an unfamiliar record and also exercised his discretion to allow more discovery. Second, the trial court could not reconsider Garety\u2019s motion with respect to the forum non conveniens factors enumerated in Whirlpool I without more factual development.\nThis court in Whirlpool I seemed to say the contract was entered into in Illinois. See Whirlpool I, 278 Ill. App. 3d at 182 (\u201cthe fact that the contract was entered into in Illinois\u201d). However, this comment was casual obiter dicta. It never should have been made. We were not called on, and did not intend, to decide this issue. In the first appeal, the record provided an incomplete picture of the place of contract. The trial court, under two different judges, reopened discovery and accepted evidence on this issue, eventually finding the contract was not entered into in Illinois. We do not review that decision.\nAlthough the trial court could have more clearly evaluated the forum non conveniens factors, the record demonstrates the trial court conducted \u201cthe required weighing process\u201d (Whirlpool I, 278 Ill. App. 3d at 181) before granting Garety\u2019s motion and thus complied with this court\u2019s mandate.\n2. Forum Non Conveniens Factors and Trial Court Discretion\nForum non conveniens is an equitable doctrine that allows a court to decline jurisdiction where a trial in another forum \u201cwould better serve the ends of justice.\u201d Vinson v. Allstate, 144 Ill. 2d 306, 310, 579 N.E.2d 857 (1991). This common law doctrine applies on an interstate basis, and the trial court can dismiss a case that has \u201cno practical connection to the forum\u201d where it was filed. Vinson, 144 Ill. 2d at 310. The doctrine presupposes the existence of more than one court with jurisdiction to hear the case. Peile v. Skelgas, Inc., 163 Ill. 2d 323, 645 N.E.2d 184 (1994); Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App. 3d 311, 683 N.E.2d 929 (1997).\nWhen ruling on a forum non conveniens motion, the trial court must balance private and public interests. Kwasniewski v. Schaid, 153 Ill. 2d 550, 607 N.E.2d 214 (1992).\nThe private interest factors include: \u201c(1) the convenience of the parties; (2) the relative ease of access to sources of proof; (3) the accessibility of witnesses; and (4) \u2018all other practical problems that make trial of a case easy, expeditious and inexpensive.\u2019 \u201d Whirlpool I, 278 Ill. App. 3d at 181, quoting Kwasniewski, 153 Ill. 2d at 553. Other private interest factors include the availability of compulsory process, the cost of obtaining attendance of willing witnesses, and the ability to view the premises (if appropriate). Elling, 291 Ill. App. 3d at 314.\nThe public interest factors include: \u201c(1) the congestion of the court dockets; (2) the interest in deciding localized controversies; and (3) the unfairness of imposing jury duty on residents of a county [or a state] with little connection to the litigation.\u201d Whirlpool I, 278 Ill. App. 3d at 181. Court congestion is a relatively insignificant factor, especially where the record does not show the other forum would resolve the case more quickly. See Peile, 163 Ill. 2d at 342-43; Kwasniewski, 153 Ill. 2d at 555.\nThe private/public balance is tipped in favor of the plaintiffs chosen forum. The forum non conveniens factors:\n\u201cmust strongly favor the defendant in order to override the plaintiffs statutory right to select the forum. [Citation.] However, this right is accorded less deference when the plaintiff does not reside in the county [or state] he has chosen [citation] and the situs of the injury is not located in the chosen forum.\u201d Elling, 291 Ill. App. 3d at 314.\nSee Schoon v. Hill, 207 Ill. App. 3d 601, 605, 566 N.E.2d 718 (1991) (\u201cAlthough a plaintiffs choice of forum is generally accorded great weight and will not be disturbed unless the balance of factors strongly favors defendant, a plaintiffs choice is entitled to less deference when plaintiff chooses a foreign forum\u201d).\nThe defendant bears the burden of proving the plaintiffs chosen forum is inconvenient to the defendant and another forum is more convenient to all parties. See Hall v. CBI Industries, Inc., 264 Ill. App. 3d 299, 303, 636 N.E.2d 1037 (1994). In other words, the defendant cannot assert the plaintiffs chosen forum is inconvenient to the plaintiff. See Hoffmeister v. K mart Corp., 181 Ill. App. 3d 739, 537 N.E.2d 460 (1989).\nIn ruling on a forum non conveniens motion, a trial court has considerable discretion, and this court will disturb the trial court\u2019s ruling only if the trial court abused its discretion in weighing the relevant factors. Peile, 163 Ill. 2d at 336. In reviewing the trial court\u2019s decision, to grant a forum non conveniens motion to dismiss, an appellate court should not conclude the trial court abused its discretion simply because a plaintiffs chosen forum has an interest in the litigation. Schoon, 207 Ill. App. 3d at 609.\nThe forum non conveniens factors in this case point more toward Michigan and Arkansas than Illinois as the most convenient forum for Whirlpool\u2019s claim.\na. Private Factors\nWhirlpool could conveniently litigate its claim in Michigan. In fact, Whirlpool brought its initial declaratory judgment action against its primary insurers in a Michigan state court. Lloyd\u2019s, an English company, also could conveniently litigate its claim in Michigan. Lloyd\u2019s brought its declaratory judgment claim in a Michigan federal court. However, as a foreign company, Lloyd\u2019s could litigate the instant case as conveniently in Illinois. Both parties have Illinois attorneys, but the location of counsel should not affect the forum non conveniens weighing process.\nThe documentary evidence in this case is located primarily in Michigan at Whirlpool headquarters, in England with Lloyd\u2019s underwriters, and in Arkansas. Any documents Bowes may have had in Illinois relating to Whirlpool\u2019s policy already have been discovered.\nThe fact witnesses in this case come from Michigan, England, and Arkansas. Only Travis, a Bowes representative, still lives in Illinois for at least part of the year. Additionally, in a coverage dispute over the arguable sudden seepage of pollution in Arkansas, environmental opinion witnesses may come from other locations across the country.\nThe lack of compulsory process over Lloyd\u2019s would cause similar problems in any American jurisdiction, although Lloyd\u2019s seems a willing participant in coverage disputes with Whirlpool. A jury view of the premises, if appropriate, would be possible only in Arkansas.\nb. Public Factors\nThe Cook County circuit court is the largest unified county court system in the country, with the congestion concomitant to that distinction. The record shows the Arkansas courts remain less congested. However, neither party has offered any evidence on docket congestion in Michigan\u2019s federal district or state courts, much less England\u2019s courts. This factor is not significant here, especially in light of this court\u2019s criticism of the trial court\u2019s over emphasis of court congestion in the first forum non conveniens hearing.\nJury duty would become a burden on Cook County residents. While jurors might decide whether an Illinois broker acted as an agent for an English insurance syndicate, the primary fact questions would involve whether the English insurer\u2019s pollution policy covered seeping at an IWC facility in Arkansas owned by a Michigan resident corporation. Illinois connection to this controversy is thin.\nFinally, while Illinois has a \u201csignificant and substantial\u201d interest in resolving cases between Illinois residents (Kwasniewski, 153 Ill. 2d at 556), this interest drastically decreases in cases involving nonresident parties. Illinois courts have expressed a desire to encourage litigation in the forum where the injury occurred. See Brummett v. Wepfer Marine, Inc., 111 Ill. 2d 495, 490 N.E.2d 694 (1986); Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 456 N.E.2d 98 (1983); Peterson v. Monsanto Co., 181 Ill. App. 3d 677, 537 N.E.2d 1030 (1989). Whirlpool\u2019s complaint describes its injury as the monetary loss from Lloyd\u2019s \u201cfailure to fulfill its contractual obligations.\u201d Whirlpool suffered no monetary loss in Illinois. Logic dictates Whirlpool lost money where it maintains its headquarters \u2014 in Michigan.\nWhirlpool\u2019s domicile is Michigan. Lloyd\u2019s domicile is England. The formal policy was issued in England by Minet and forwarded to Bowes in Chicago, but delivered to Whirlpool in Michigan. The cover notes, summarizing Lloyd\u2019s coverage, were issued by Minet in England and Bowes in Chicago, but delivered to Whirlpool in Michigan.\nThe last act to give rise to the formal policy \u2014 Lloyd\u2019s underwriters\u2019 approval \u2014 occurred in England. The last act to give rise to coverage \u2014 Lloyd\u2019s \u201c100 percent placed\u201d confirmation message \u2014 occurred in England.\nWhirlpool notes it paid premiums to Bowes and notified Bowes of any occurrences in Chicago. Whirlpool also notes Bowes issued endorsements, which affected the terms of the policy, with Lloyd\u2019s authorization. Further, Whirlpool contends it negotiated its policy only with Bowes, and only Bowes negotiated with Lloyd\u2019s. However, the record shows Bowes acted merely as a conduit for money and information between Whirlpool and Minet, Lloyd\u2019s broker. Negotiations occurred in Michigan, Chicago, and England. The parties discharged policy obligations in Michigan, Chicago, and England.\nIllinois has the least at stake of any potential forum. Neither party is an Illinois resident. The insured property and the coverage-triggering event were in Arkansas. There are some lingering issues of whether Bowes acted as an agent for Lloyd\u2019s under Illinois law, but another court could apply these agency principles. Michigan has an interest in vindicating the contract rights of its citizens against foreign encroachment. England has a parallel interest. Arkansas has a substantial interest in its polluted soil.\nWhile Whirlpool chose Illinois courts as a forum for its dispute with Lloyd\u2019s, the trial court found Illinois was a forum non conveni-ens. This was a close case. But \u201c[t]he role of this court is not to substitute its judgment for that of the circuit court, or even to determine whether the circuit court exercised its discretion \u2018wisely.\u2019 \u201d Schoon, 207 111. App. 3d at 609.\nIllinois courts have described an abuse of discretion in various ways: a ruling which \u201cno reasonable person would take the view adopted by [it]\u201d (O\u2019Connell v. City of Chicago, 285 Ill. App. 3d 459, 463, 674 N.E.2d 105 (1996)); a ruling made \u201cwithout the employment of conscientious judgment\u201d or which \u201cexceeded the bounds of reason\u201d (Kaden v. Pucinski, 263 Ill. App. 3d 611, 615, 635 N.E.2d 468 (1994)); a ruling with \u201cno reasonable basis in the evidence\u201d (Ford v. Baker, 61 Ill. App. 3d 45, 46, 377 N.E.2d 853 (1978)); and a ruling whose \u201copposite result [is] clearly evident from a review of the evidence\u201d (In re J.P., 261 Ill. App. 3d 165, 174, 633 N.E.2d 27 (1994)). Perhaps we would have decided this case differently under a de nova standard of review. However, we cannot say the trial court\u2019s ruling fits within any of the decisional definitions of \u201cabuse of discretion.\u201d\nCONCLUSION\nThe trial court followed this court\u2019s instructions on remand and did not abuse its discretion in granting Garety\u2019s forum non conveni-ens motion. We affirm.\nAffirmed.\nMcNAMARA and SOUTH, JJ., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Cassiday, Schade & Gloor, of Chicago (D. Patterson Gloor and Sandra E. Kupelian, of counsel), for appellant.", "Lord, Bissell & Brook, of Chicago (Hugh C. Griffin, Leslie J. Rosen, Leisa J. Hamm, and Robert E. Sweeney, Jr., of counsel), for appellee." ], "corrections": "", "head_matter": "WHIRLPOOL CORPORATION, Plaintiff-Appellant, v. CERTAIN UNDERWRITERS AT LLOYD\u2019S LONDON, Defendant-Appellee.\nFirst District (4th Division)\nNos. 1\u201497\u20142306, 1\u201497\u20144082 cons.\nOpinion filed March 19, 1998.\nCassiday, Schade & Gloor, of Chicago (D. Patterson Gloor and Sandra E. Kupelian, of counsel), for appellant.\nLord, Bissell & Brook, of Chicago (Hugh C. Griffin, Leslie J. Rosen, Leisa J. Hamm, and Robert E. Sweeney, Jr., of counsel), for appellee." }, "file_name": "0828-01", "first_page_order": 848, "last_page_order": 859 }