CARMEUSE LIME & STONE and Carmeuse Lime, Inc., Appellants, v. ILLINI STATE TRUCKING, INC., Appellee.
No. 45A03-1211-CC-462
Court of Appeals of Indiana
March 18, 2013
985 N.E.2d 1101
against [her].”
- The court finds, in a hearing:
- conducted outside the presence of the jury; and
- attended by the protected person in person or by using closed circuit television testimony as described in section 8(f) and 8(g) of this chapter;
- The protected person:
- testifies at the trial; or
- is found by the court to be unavailable as a witness for one (1) of the following reasons:
- From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person‘s testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.
- The protected person cannot participate in the trial for medical reasons.
- The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.
Of course, the declarant‘s subjеctive belief may still be a factor in the court‘s determination of reliability. But where we have a statute that permits the trial court to consider the totality of the circumstances, it need not be the only factor. Therefore, I concur in result.
RUSH, J., concurs.
Eric L. Kirschner, Green & Kuchel, P.C., Schererville, IN, Attorney for Appellee.
OPINION
BROWN, Judge.
Carmeuse Lime & Stone and Carmeuse Lime, Inc. (collectively, “Carmeuse“) appeal from the trial court‘s order dismissing their complaint in favor of Illini State Trucking, Inc. (“Illini“). Carmeuse raises one issue which we revise and restate as whether the cоurt erred in dismissing its complaint. We affirm.
FACTS / COURSE OF PROCEEDINGS
The relevant facts follow.1 On December 7, 2007, John Ruiz, an employee of Nick‘s Transport, a subcontractor of Illini, was injured on the premises of Carmeuse when he stepped into lime and/or other chemicals and received chemical burns. On November 30, 2009, Ruiz filed a complaint against Carmeuse in the Lake County Superior Court alleging premises liability,2
Carrier [Illini] shall indemnify, defend, and hold harmless Shipper [Carmeuse], its employees, agents, representatives, successors and assigns from and against any and all judgments, costs, damages, claims, causes of action and expenses (including attorneys fees) resulting from or arising out of any injuries to persons (including death) and damage to property caused by [C]arrier‘s performance hereunder or the negligent acts or omissions of the Carrier, its employees, agents, servants or representatives.
Id.
On March 18, 2011, Illini consented to fеderal jurisdiction. On May 18, 2011, Illini filed a motion to dismiss Carmeuse‘s third party complaint pursuant to
On November 14, 2011, Carmeuse filed a motion for leave to file a counterсlaim against Illini,4 and on November 18, 2011, Illini moved for judgment on the pleadings pursuant to
On June 26, 2012, Carmeuse filed a complaint against Illini in the Lake County Superior Court. The complaint contained substantially-similar language to Carmeuse‘s previous third-party complaint filed in federal court and, indeed, stated among other things that “complete diversity remains,” that “[o]n or about December 7, 2007, the plaintiff herein was purportedly injured on the defendant‘s premises after allegedly stepping into lime,” that “[t]he plaintiff was an employee of Nick‘s Transport,” that “[a]ll of the claims against Carmeuse, as alleged in plaintiff‘s Complaint, are covered by the contract between Carmeuse and Illini,” and that “WHEREFORE, the Counter-claimant/defendant, Carmeuse ... prays that this Court find that the counter-defendant/claimant, Illini ... must indemnify ... Carmeuse....” Id. at 71-73. On July 26, 2012, Illini filed a motion to dismiss pursuant to
On or about August 28, 2012, Carmeuse filed a response to Illini‘s motion to dismiss requesting that the court deny Illini‘s motion and referencing its motion for leave to amend pursuant to
The motor carrier/shipper agreement that has been attached and Paragraph
12 of that agreement cited by Carmеuse clearly does not apply. There have been no negligent acts or omissions of Illini or its agents even mentioned in any complaint ever filed by Carmeuse. However, the document at [P]aragraph 19 does say that with respect to any legal action related to this agreement, the action shall be brought and maintained in Allegheny County, Pennsylvania; to that effect, [Illini] and [Carmeuse] each hereby consent to personal jurisdiction and acknowledge venue is proper in that forum. Therefore, this matter should be filed in Pittsburgh, Pеnnsylvania and not in the State of Indiana. This issue was never raised in any of the Federal pleadings as Illini was a third-party defendant and the complaint against it was dismissed by the court. It is now time to point out that the agreement upon which Carmeuse claims this action is based mandates that this matter be filed in Pittsburgh, Pennsylvania.
Id. at 123.
On September 17, 2012, the court held a hearing on the filed motions.7 On October 1, 2012, Carmeuse filed its response to Illini‘s Objection which stated in part that “for the first time in the entire course of litigation, Illini challenges forum” and that Carmeuse is “unaware of the exact reason(s) Illini waited until this juncture,” but “Illini should not be permitted to raise a challenge to forum after consistently waiving any objection in every proceeding and pleading up to this point.” Id. at 128. On October 4, 2012, the court issued an order stating:
[Carmeuse] filed a Motion to Amend its Complaint on August 28, 2012. This amendment is sought in response to [Illini‘s] Motion to Dismiss filed on July 26, 2012. After the Court heard the Parties[‘] oral argument the Court allowed [Carmeuse] to file a response to [Illini‘s] objection to the amendment.
After taking the matter under advisement and reviewing the mеmoranda exhibits and relevant case law and Court rule [sic] the Court now Dismisses [Carmeuse‘s] Complaint and Dismisses [Carmeuse‘s] Motion to Amend.
The Contract that [Carmeuse] seeks the Court to review and eventually enforce its indemnification and hold harmless clauses, clearly states that the venue for any legal action related to the agreement would be in Allegheny County Pennsylvania. The Parties agreed to this forum in their contract. Yet [Carmeuse] wants to enforce the contract but ignore this venue provision.
The Court finds the propеr venue for any action dealing with any alleged negligence of Illini‘s or its subcontractor‘s employees in the performance of their employment under the contract should be in the forum which the Parties to the contract agreed upon, or Allegheny County Pennsylvania.
The Complaint is Dismissed and the Motion to Amend the Complaint is likewise Denied. This is a Final Appealable Order.
Id. at 156-157.
ISSUE / STANDARD OF REVIEW
The issue is whether the court
Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
ANALYSIS
Paragraph 19.2 of the contract states:
With respect to any legal action related to this Agreement, the action shall be brought and maintained in Allegheny County, Pennsylvania; to that effect, [Illini] and [Carmeuse] each hereby consent to personal jurisdiction and acknowledge venue is proper in that forum.
Appellants’ Appendix at 140.
This court has observed that “forum selection provisions are enforceable if they are reasonable and just under the circumstances and if there is no evidence of fraud or overreaching such that the agreeing party, for all practical purposes, would be
Carmeuse argues that “Illini did not raise аny objection based upon venue or lack of jurisdiction in its original Motion under Rule 12 or a responsive pleading,” and accordingly it waived its claim. Appellants’ Brief at 8. Carmeuse argues that Illini waived the contractual provision regarding venue when it “filed and litigated a claim against Carmeuse in the Northern District of Indiana without ever raising the issue of venue.” Id. at 10. Carmeuse argues that Illini “raised additional arguments beyond those contained within its original Motion to Dismiss” as a part of its objection to Carmeuse‘s motion for leave to аmend, and these additional arguments “could also be seen as consent to jurisdiction in Indiana and, as such, an implied waiver of the contractual provision regarding venue.” Id. Carmeuse also argues that public policy considerations favor maintaining the litigation in Indiana, noting that “neither of the parties [are] located in Pennsylvania,” “both parties’ counsel practice in Indiana,” “Pennsylvania has virtually no connection to the facts of this case or underlying lawsuit,” “none of the witnesses are located in Pennsylvania,” and “litigating in Pennsylvania will result in significant additional costs due to expenses for travel, as well as the refiling of all Motions in Pennsylvania court.” Id. at 11.
Carmeuse does not claim that the forum selection clause was not freely negotiated, i.e., that the discrepancy in bargaining power led Carmeuse to sign the contract unwillingly or without awareness of its terms. See Grott v. Jim Barna Log Sys.-Midwest Inc., 794 N.E.2d 1098, 1102 (Ind.Ct.App.2003), trans. denied. Carmeuse instead argues that Illini waived its ability to rely upon the forum selection clause because it did not raise it with the court until filing its Objection on September 7, 2012. Our review of the circumstances reveals that Carmeuse filed its complaint in the instant action on June 26, 2012, and in so doing it did not attach the contract. Illini filed its motion to dismiss, arguing that Carmeuse‘s complaint was incoherent as it contained language similar or identical to the language filed in its earlier, third party complaint in the federal action. Specifically, the complaint stated, among other things, that “complete diversity remains,” and it repeatedly referred to “the plaintiff” in a context more properly attributable to Ruiz, but of course Carmeuse was the appropriate plaintiff. Based upon these errors, Carmeuse filed a response to the motion to dismiss and a motion for leave to amend. Carmeuse attached to the motion for leave to amend its proposed amended complaint as well as the contract. Illini thereafter filed its Objection and brought to the court‘s attention the forum selection clause contained in the contract found under Paragraph 19.2.
Thus, Illini was unsure of how to respond to the initial complaint, which was averred as if it were submitted by a third party plaintiff asking for indemnification against the claims of an injured plaintiff and, importantly, did not contain a copy of the contract at issue. See
Carmeuse does argue that the forum selection clause is unjust and unreasonable, specifically arguing that enforcement would be against public policy. We first observe on this score that its suggestiоn that “neither of the parties [are] located in Pennsylvania” is patently false—indeed, Carmeuse specifically pled in its complaint that its principal place of business is located in Pennsylvania and the contract lists a Pittsburgh, Pennsylvania address for Carmeuse. Thus, it appears that the forum selection clause was negotiated for Carmeuse‘s benefit.
This court has articulated the test for a forum selection clause being unjust and unreasonable as a showing that “trial in the contractual forum will be so gravely difficult and inconvenient that they will, for all practical purposes, be deprived of their day in court.” Grott, 794 N.E.2d at 1103-1104 (citing Horner v. Tilton, 650 N.E.2d 759, 763-764 (Ind.Ct.App.1995) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 1917, 32 L.Ed.2d 513 (1972)), reh‘g denied, trans. denied). As noted above, “[e]ven where the forum-selection clause establishes a remote forum for resolution of conflicts, the party claiming [unfairness] should bear a heavy burden of proof.” Dexter Axle, 833 N.E.2d at 48 (quoting Carnival, 499 U.S. at 592, 111 S.Ct. at 1526) (internal quotations omitted).
Carmeuse cites to Farm Bureau Gen. Ins. Co. of Mich. v. Sloman, 871 N.E.2d 324 (Ind.Ct.App.2007), trans. denied, and argues that in that case “the court decided not to enforce a forum selection clause when doing so would result in ‘added expenses and inconvenience to the parties and [sic] the witnesses, an increased burden on the judicial systеm, and the possibility of inconsistent verdicts.‘” Appellants’ Brief at 11 (quoting Farm Bureau, 871 N.E.2d at 332). In Farm Bureau, defendant Sloman and Janet Lund were involved in an automobile accident after Lund merged in front of Sloman in Elkhart, Indiana. Id. at 326. Sloman was insured by Farm Bureau under an insurance policy purchased in Michigan and governed by Michigan‘s No-Fault Act, also containing uninsured motorist coverage, and Lund was an uninsured motorist. Id. Farm Bureau ultimately denied Sloman‘s claim “because it believed that Sloman had failed to provide it with written notice of his uninsured motorist claim within one year of the accident,” and Sloman filed a complaint in Elkhart County, Indiana. Id. at 327. Farm Bureau filed a motion to dismiss under
On appeal, this court examined prior precedent including Carnival and Dexter Axle and applied the two-part test to determine the forum selection clаuse‘s validity. Id. at 329. This court first determined that the forum selection clause had been freely negotiated and subsequently examined whether it was just and reasonable under the circumstances. Id. at 330. It began its analysis by observing that “[u]sually, no public policy reasons exist to prevent parties from establishing venue through a contractual provision” because “forum selection clauses typically serve as a worthy tool to limit the fora in which a company may be sued,” among other things, but next noted that “[n]evertheless, a forum selection clause‘s validity may come into question when it ‘interfere[s] with the orderly allocation of judicial business....‘” Id. The court noted that Farm Bureau would only be liable to Sloman if “(1) the accident was the fault of Lund and (2) Sloman suffered damages as a result thereof,” and that “[c]onsequently, any action against Farm Bureau on the contract is inseparably tied to the legal liability of Lund.” Id. The court observed:
The forum selection clause cannot bind Lund who was not a party to this contract between Farm Bureau and Sloman. In fact, Michigan would have no jurisdiction over Lund for an accident that occurred in Indiana. Hence, implementation of Farm Bureau‘s forum selection clause would result in Sloman having to file two separate yet similar lawsuits emanating from the same accident: one in Indiana against Lund regarding liability and damages, and one in Michigan against Farm Bureau regarding its obligation to pay damages to Sloman under its uninsured motorist provision.
Id. at 331. The court examined policy considerations as identified in Carnival and held that enforcing the forum selection clause under the circumstances was unjust аnd unreasonable and noted in particular that “avoidance of multiple lawsuits involving the same parties and the same issues has historically been of great concern in Indiana.” Id. at 331-333.
Here, by contrast, Carmeuse has already settled with Ruiz, the party who would have not been bound by the forum selection clause contained in the contract between Carmeuse and Illini. Thus, there is no possibility of multiple lawsuits. Also, as noted above the party claiming unfairness from a forum selection clause due to the remoteness of the forum bears a heavy burden of proof. On that score, we also note that the distance between Lake County, Indiana, and Allegheny County, Pennsylvania, may be traversed by automobile in several hours, and accordingly we cannot say that Allegheny County, Pennsylvania is too remote. See Horner, 650 N.E.2d at 764 (noting that the distance between Marion County, Indiana and Peoria County, Illinois “may be traversed by automobile in several hours” and accordingly “it cannot be said that, in the context of the issue before us, Peoria County, Illinois is a remote forum“). We cannot say that enforcing the forum selection clause is unjust and unreasonable, and accordingly we conclude that the court did not err in dismissing Carmeuse‘s lawsuit.9
Affirmed.
BAILEY, J., and VAIDIK, J., concur.