*1 majority’s dice the defendant. As the review of facts indicates, properly admitted evidence was so overwhelming jury that no fair-minded could reason- ably acquit. have voted to joins special
JUSTICE McMORROW in this concur- rence.
(No. 80025. COMPANY, ZURICH INSURANCE Appellee, v. (Baxter INTERNATIONAL, INC., BAXTER et al. International, Inc., al., et Appellants).
Opinion Rehearing June denied 1996.— September 1996.
BILANDIC, C.J., part. took no FREEMAN, J., joined by McMorrow, J., specially concurring. Morris, Jr.,
Thomas A. Leslie Peterson and Rebecca Larson, S. Brydges, Riseborough, Morris, of Franke & Miller, of Waukegan, Kleinman, and Joel B. Leslie R. Cohen, Mark A. Packman and Harvey, Teresa L. of Dickstein, Morin, L.L.P., Shapiro D.C., & of Washington, appellants.
Bryan Winter, Winter, R. of Fuqua, & Stiles Ander- son, of Waukegan, Dwyer, Hodge Edward of Dwyer, & Springfield, Erens, Jay Ossyra James D. and David B. Goroff, of Hopkins Sutter, & Chicago, and Thomas W. Brunner, Foggan, Laura A. Russell D. Duncan and III, James Ludwig M. Wiley, Rein & Fielding, of *3 D.C., Washington, appellee.
JUSTICE HARRISON delivered the opinion of the court:
This appeal concerns a declaratory judgment action brought in the circuit court of County by Lake Zurich Insurance Company obligations to determine its under various policies insurance issued to Baxter Interna- (referred tional, Inc., and Baxter Corporation Healthcare Baxter). to collectively as question The before us is whether the circuit court abused its discretion when it issued an order pursuant to section (735 619(a)(3) (West Code Civil Procedure of ILCS 5/2 — 1992)) staying Zurich’s pending lawsuit the outcome of a second involving the same subsequently in Baxter Zurich issues follow, the reasons that wé the state of California. For agree court that the should with granted. App. Subject 3d have been 275 Ill. 30. to certain parties, pertaining to the modifications appellate judgment is court’s affirmed. undisputed. are Zurich is a facts Swiss relevant
corporation main in the whose "offices administrative in Interna United States Illinois. are Baxter located Corporation tional, Inc., Baxter Healthcare are Del corporate headquarters, corporations whose aware including management department, their risk are also According record, in Zurich is located Illinois. to the general liability comprehensive insur sued series policies covering periods ance between policies delivered, issued, and 1986. All of these were in Illinois Illinois under serviced brokers writers. extracting blood
One of Baxter’s businesses involves treating plasma from for use factor concentrates hemophilia. by hemophiliacs Baxter has been sued from allege these concentrates Illinois and elsewhere who immunodeficiency were contaminated with human (HIV), that the concentrates infected them virus expect virus, and that suffer or to suffer from (AIDS). Deficiency Syndrome Acquired Al- Immune though any not cited evidence indicat- have ing jurisdic- precise láwsuits, number such many been filed or how tions which the suits have represent, are, there individual claimants counsel involving in at least 100 Baxter is involved cases more Among hemophiliacs. 10,000 than HIV-infected these pending Illinois; or have been are cases that are tried including approximately 7,500 on behalf of class action District Court for in the United Státes claimants filed District of Illinois. the Northern *4 In litigation, pres- the wake of this Zurich filed the ent action to obtain a it had duty comprehensive general no under the in- liability policies surance it had to Baxter issued to defend the company against or it for indemnify pertaining claims HIV-contaminated to the blood factor concentrates. Bax- California, responded by filing ter its own action in where the blood factor processed, concentrates were ask- ing for a declaratory judgment that Zurich did have a duty under the policies to defend and indemnify it. The California action sought declaratory also judgment with respect rights obligations to the of Baxter’s insurers, numerous excess but all but one those excess insurers have now been dismissed from the case.
At the outset of proceedings these Baxter claimed it initiated the separate action in California as a "counter punch” to Zurich’s court, lawsuit. Before this position company different. The denies that its mo- tive is to harass Zurich or secure some tactical advan- tage over According it. its true purpose is simply to sidestep the HIV-infected hemophiliacs who have sued it.
Here, as in court, the Baxter contends that law, under Illinois tort necessary claimants are in declaratory judgment regarding actions insurance coverage for claims, their joined must be in or- der for the declaratory proceedings go law, forward. Under contrast, they are not necessary parties required. is not Accord- ingly, Baxter contends that suing California will en- able it to resolve its coverage insurance dispute with Zurich free from participation legion of tort claimants who are pursuing it.
While Baxter professes now simplify- concern ing its dispute against Zurich, note that Zurich’s w;e original Illinois complaint was actually less complex *5 Baxter itself California. complaint by
than the action, litigation did the Illinois Unlike the only par- any name of Baxter’s excess insurers. Zurich and and Bax- proceeding ties the were proceed the case could not thát ter did not assert that posture. or dismiss
When Baxter moved subsequently grounds action, did not do so on the the Illinois it and should be original complaint was defective Zurich’s Instead, join necessary parties. dismissed for failure to 619(a)(3) the Code of Civil Proce- section it invoked 2— 619(a)(3) (West (735 1992)), which ILCS dure 5/2 — for dismissal or may a defendant move provides that grounds the that “there relief on appropriate other parties between the same pending another action argued that the case was Baxter also the same cause.” premature. with failure might problem that there be
The idea raised did not arise until it was join necessary parties court, Although the court sponte. sua by the circuit dismiss, court was motion to the denied Baxter’s of the might require joinder law concerned that Illinois this, Bax- as in cases such as underlying tort claimants op- gave parties now asserts. The court ter arguments at a present to brief issue portunity it concluded that hearings, after which series necessary parties underlying tort claimants were The court proceed. the case could joined must be before could not be joinder problem further concluded that the relying by or by using procedures class action avoided representation. on the doctrine of outright, complaint dismiss Zurich’s Rather than case, giving company court continued the the circuit addressing complaint an amended leave to file filing a new com- responded Zurich joinder problem. insurers Baxter’s excess that named plaint particular underlying and the Claimants over whom In personam jurisdiction. Illinois courts could assert dropped request of its Zurich its complaint, this version comprehensive rights obliga- for a declaration Instead, policies. tions under insurance it limited its for relief to the circumstances prayer pre- actually claimants it had particular joined sented as parties. deny approach
Baxter did not resolved the circuit court’s concerns. Its attack on Zurich’s action took a new turn. Baxter now filed a new motion Code, argu- to dismiss under section ing that the Illinois action stayed pending should be res- because, olution of the case in California in its amended form, the Illinois action was "comprehensive” now less *6 than its California counterpart. The agreed circuit court argument, 25, with Baxter’s and on October it entered an order granting the stay requested by Baxter. later, days Zurich,
Several on a motion circuit court also finding made a written under Supreme (155 308) Court Rule 308 Ill. 2d R. previous its respect orders with joinder the issue of ques involved of tions law as to which ground there is substantial opinion difference of and that an appeal may immediate materially advance the ultimate termination of the liti gation. particular The questions of law identified (1) circuit court were whether the underlying claimants and excess insurers did in fact joined have to be as nec (2) essary parties for the proceed, case to whether correctly court refused to allow Zurich to use a class action mechanism or to rely on the doctrine represen of tation in lieu of joining the individual claimants from the underlying tort actions Baxter.
Once the circuit court entered its Zurich findings, sought to appeal Supreme leave under Court Rule 308 (155 308) Ill. 2d R. from the circuit court’s orders Although appellate
concerning joinder. the issue of application, an Zurich’s we entered order court denied authority requiring supervisory our in the exercise of appeal appellate on court to hear Zurich’s Rule 308 subsequently make clarified that order to the merits. We were not meant to bar Bax- clear that our instructions right arguing that Zurich had ter from waived joinder issues. contest the pursuing ap time it was this Rule 308
At the same right interlocutory appeal peal, also filed an Zurich staying the Illinois from the circuit court’s order pending resolution of the 307(a)(1). appel 155 Ill. 2d R. action California. appeal subsequently consolidated this late court appeal the circuit Zurich’s under Rule reversed holding, stay, trial, and remanded the cause for court’s right alia, to contest inter that Zurich had not waived its underly joinder all issues and that litigation ing necessary in claimants is not mass-tort App. applica this. 275 Ill. 3d 30. On Baxter’s such as granted impor tion, court a certificate of under tance, matter is now before us for review and the 316). (155 Ill. 2d R. Rule appellate court, Here, Baxter continues'to as in the right contest the that Zurich has waived its assert agree. rulings joinder. on the issue of We circuit court’s previously mentioned, the circuit court held that As underlying necessary parties,
tort claimants were proceed, joined the case to all had to be in order for joinder requirement be satisfied could not and that this *7 through the doctrine of a class or means of ruling, representation. a Zurich could Faced with such pleadings, taken an involun- elected to stand on its have pursuant prejudice tary of its action with dismissal (735 ILCS Procedure 2—615 of the Code of Civil section (West 1992)), judg- appealed that then and 5/2 —615
243 responded Instead, ment. It elected not to do so. it to the rulings by filing pleading. circuit court’s an amended pleading complete itself, Zurich’s new was did not allegations adopt prior pleadings, refer to or in the sought specific particular relief in the context of claim ants the Illinois courts could over whom assert personam jurisdiction. There were no class action al legations allegations involving repre or the doctrine of longer sentation, and Zurich no asserted that it could proceed Baxter alone without of the circumstances, tort claimants. Under these previous pleadings were, effect, Zurich’s abandoned (Pfaff v. Chrysler Corp., withdrawn 155 Ill. 2d (1992)), any objection and Zurich waived to the circuit (Boat rulings respect pleadings court’s with to those Lines, Inc., men’sNational Bank v. Direct 167 Ill. 2d (1995)). Because the issues raised Zurich’s Rule appeal pertained only pleadings to the earlier inapplicable were to the final version of Zurich’s com plaint, appellate addressing court therefore erred in Accordingly, them on the merits. court’s necessary parties litigation discussion of in mass-tort precedential cannot stand and is of no value.
Although portion ap- we must disavow that pellate opinion, agree we nevertheless court’s stay- ultimate conclusion that the circuit court erred in ing proceedings pursuant the circuit court to section 619(a)(3) provision of the Code. That allows defen- 2— dant to for a
move dismissal or whenever there is pending "another action between the same (West 619(a)(3) 1992). the same cause.” 735 ILCS 5/2 — Although purpose duplicative of the law is to avoid litigation, automatically required a circuit court is not stay proceeding to dismiss or under section 2— parties” even when the "same cause” and "same requirements Multiple are met. actions in different *8 arising may
jurisdictions operative facts out of the same court, the circuit in a sound be maintained where discretion, that both actions exercise of its determines proceed. a consider in decid should Factors court should ing a is warranted under section whether comity; prevention multiplic include the 2— ity, harassment;
vexation and the likelihood of obtain ing complete foreign jurisdiction; relief in the and the foreign judicata a in the local res effect of Corp., Kellerman MCI Telecommunications forum. v. (1986). 112 Ill. 2d 447-48 headquar- case, In this both Zurich and Baxter have management department ters in Illinois. Baxter’s risk disputed policies Illinois, located in negotiated the insurance were signed ques- Illinois, in and there is no governed interpretation policies tion that by will be every way, dispute, is, Illinois law. This in an Illinois ac- the California trial court before which Baxter’s recognized pending has it as such. If the Illinois tion is willing provide forum, the California courts are gladly yield. trial court will Although any improper motive, Baxter denies its original justification filing California, for to "counter blatantly retaliatory. punch” Zurich, seems quently attempted It subse- focusing legitimize position by its underlying As on interests of the tort claimants. our question previous indicated, however, discussion litiga- participate in the whether those claimants should sponte, court, sua tion was raised the circuit initially responded to Zurich’s Il- Baxter. When Baxter complaint California, linois action and filed its own played role in claimants no discernible strategy. embrace the notion that its Baxter did not might necessary parties be until the circuit court’s might help position actions indicated that such parallel company its decision to file a suit rationalize California. for began expressing
Even after concern claimants, tort its was sincerity questionable. While champion importance company appeared interests, protecting attorney the tort claimants’ as- argument serted at oral before court his client’s suing to prevent true reason in California was litigation. claimants playing any from role in Rather claimants, guarding than Baxter is intent on avoid- ing them. *9 strategy
Baxter’s is based on the where notion that an brings declaratory insurance a company judgment action its to company’s insured determine the obligations under liability policy, seeking a claimants recovery from the underlying insured in the tort actions necessary are not to the action under According California law. to the Here, law in necessary Illinois is different. par are ties who joined must be in for declaratory order the proceed. action to See M.F.A. Mutual Insur Cheek, (1977); Co. ance v. 66 Ill. 2d 495 but Zur see Industries, ich Raymark Inc., Insurance Co. v. 118 Ill. 2d (1987) (a declaratory judgment defining an insurer’s duty to indemnify defend and in its insured thousands of underlying actions was on the reviewed merits though this court even underlying none of the tort joined claimants had parties). been as question was one of the issues raised by Zurich’s Rule appeal. held, As we have Zurich waived the issue complaint when it decided to amend to litigation seek relief in the specific context of involv- ing particular litigants over whom the Illinois courts had personam jurisdiction. suggesting in Without how we would resolve the if us, issue it were properly before we note that agreed interpreta- even if we Baxter’s law, argument tion the company’s the would be unavailing. interpretation correct, is law Illinois
If Baxter’s recognition the claimants that evinces coverage in a substantial interest how insurance have questions are also a belief that this resolved. It reflects by having par- protected claimants is best the interest ticipate directly litigation the the between in insurance by allowing the insured, rather than carrier appar- independently, as to is claimants ently sue carrier the. Accordingly, practice if Baxter’s in California. correct, law fact the claim- construction of the is coverage litigation in be will excluded from ants is to the California California reason to defer Illinois be It is a reason insist action courts. Litigants proceed courts Illinois. allowed permitted sec- be to invoke such Baxter should not evading as a tion of the Code means public policy. state’s ultimátely earlier, succeeded
As noted litigation by persuading staying circuit Illinois "compre action be court that the would more California final than the action framed amended hensive” complaint. It version of Zurich’s Illinois difficult can see, however, how the be consid meaningful "comprehensive” any more ered sense *10 judgment process, a can term. As a matter of due Only privity a those bind the actual to case dr Hosiery 322, Shore, v. 439 them. Co. U.S. Parklane n.7, n.7 n.7, 2d 559 99 S. Ct. 649 L. Ed. (1979). present has form, the In its action California parties: only Baxter, Zurich, another of Bax three By contrast, includes the Illinois ter’s insurers. parties, only a three also more those but than claim insurers and dozens of Baxter’s excess hundred underlying tort In terms of from the ants. actions.. judgment litigants affected, Illinois number greater any impact than a far action will therefore have proceeding. judgment extent, To this .in California actually comprehensive action is less Baxter’s California Illinois, than Zurich’s action not more so. Baxter that the California action is claims
When "comprehensive,” any no of the more it has concern for litigants. only It is in the case’s other poténtial interested resolving dispute with Because
for Zurich. Illinois action seeks relief in the context of Zurich’s now by specific Illinois claimants the claims asserted thé suggests joinéd, who have been that its effect necessarily must litigation, be more restrictive than California litigation generally.
which refers.to the AIDS According every Baxter, the case California will cover presented every underlying claim, isáúe while Il- necéásarily linois case will be limited to the circum- particular joined stances of the who cláimants have been argument presumes here. The flaw in this is that it way the claims of the Illinois claimants are in some dis- tinguisháble from the additional claims nothing California case. There is in the record before us to substantiate such Contention. As between Zurich presented by Baxter, are, the issues the two cases practical purposes, for all identical. Under these circum- judgment stances, á in the Illinois action be would no conclusive, less as between Zurich and than a judgment proceeding. ih (cid:127) foregoing reasons, For the we believe that there was stayed no reáson circuit to have valid court Zur- 619(a)(3)pending ich’s.action under section outcome Entry Baxter’s action in .of California. of that con- discretion, stituted an abuse and the court was correct whén it reversed the circuit court’s order and' remanded the cáuse the circuit court for further proceedings. appellate court, opinion, modified is therefore affirmed.
Affirmed as modified. *11 248 BILANDIC took no in part
CHIEF JUSTICE or case. consideration decision this FREEMAN, specially concurring: JUSTICE agree join I decision fully majority’s appellate affirm court’s The appellate judgment. correctly court determined that the trial court abused by granting its discretion proceedings action in favor of only highlight I defendant California. write undergird salient factors that our decision. declaratory The reveals that Baxter filed its record Zurich, against action in California insurer, days nine after Zurich filed the instant suit in sought action Illinois. The California declaration Zurich 105 of Baxter’s had duties to excess insurers indemnify defend and under certain insurance policies against claims numerous HIV-infected persons parties These were not persons. HIV-infected law, and, action under California California necessary parties. By were not considered time of all, one, of Baxter’s excess insurers appeal, this save were from the case. The California dismissed resolution of the instant stayed, pending action also was Illinois action. complaint
Zurich’s third-amended insurers, and those HIV named Baxter’s excess number, claimants, over Illinois courts could whom The third-amended com- jurisdiction. assert personal Zurich and Baxter’s a declaration plaint seeks indemnify no duties to defend and excess insurers owe policies Baxter under the same claims these 17 persons. discretion, stayed the court, exercising its
The trial 619(a)(3), finding pursuant to section instant action 735 ILCS "comprehensive.” action more 619(a)(3) (West 1992). court vacated 5/2 — stay, ruling the now affirms. majority which *12 619(a)(3) provides may Section that a defendant 2— for a or is move dismissal whenever there "another pending parties action between the same for the same (West 619(a)(3) 1992). cause.” 735 ILCS The provi 5/2 — designed sion is duplicative litigation to avoid and is to applied carry be to out purpose. Kellerman v. MCI (1986). 428, Corp., Telecommunications 112 Ill. 2d 447 The "same cause and same parties requirements” are apparently granting threshold considerations to section 619(a)(3) relief. See Staley Manufacturing A.E. Co. v. 2— Co., 245, (1980); Kellerman, & 84 Ill. 2d 252-54 112 Swift 447; Exhibits, Ill. 2d at also see Perimeter Ltd. v. Glen (1984) Binder, Inc., 504, Molded App. bard 122 Ill. 3d 509 (failure 619(a)(3) to parties” meet section "same require relief). fatal ment request such Nonetheless, even if requirements met, the dual are relief under section is not mandated. The 2— grant court’s decision to or multiple relief allow actions proceed in different jurisdictions a remains matter of Kellerman, discretion. 112 Ill. 2d at The 447. factors a making court should consider in that decision include: comity; prevention vexation, multiplicity, harassment; obtaining complete likelihood of relief foreign in the jurisdiction; judicata res effect of foreign Kellerman, the local forum. 112 Ill. at 2d 447-48. present presents case a situation at where least
one of the requirements dual threshold for section 619(a)(3) relief was not met. The Illinois Califor- nia actions do parties. not involve the same The Califor- nia action is only between Zurich and one of insurers; Zurich’s excess the Illinois names these parties and also includes 17 of the underlying claimants as an as well entire group of Baxter’s excess insurers. 250 parties same
Further, is a case where the See Catalano v. be relaxed. requirement should Aetna (1982) 195, Co., Ill. 3d 197 Surety Casualty & App. privity); in close parties relaxed where (requirement Binder, Exhibits, Molded Ltd. v. Glenbdrd Perimeter where, Inc., at 508 relaxed App. (requirement 122 Ill. 3d claims parties, are nominal or their in one action issue); ex rel. v. People not in are Fahner Climatemp, Inc., (1981).(parties are same App. 101 Ill. 3d that, demonstrated,by the legal entity). point This fact law, underlying claim the unnamed; under California rights recovery third-party ants’ policy under be detérmined in could not California action. Any duty regarding Zurich’s to indem nót ..be res claims Baxter for the would nify Re Shapiro, See those judicata claimants. v. America, 52 2d Indemnity Co. public Cal. *13 (1959). contrast, action, Zur by the Illinois P.2d In defense, payment Baxter’s obligation ich’s to fund and of ' ¡. adjudicated. claims particular these would be. failure, requirement; In addition to the. thi< of against sec-' weigh discretionary factors which granting The here. readily aré apparent relief tion expressed with court California repeatedly frustration its, juris- would assert that our circuit the fact court not. stated, court over matter. diction California The (cid:127) (cid:127) (cid:127) inter alia: ; . contract, parties, "This is an Illinois Illinois entered *** some reason signed [flor in the state of Illinois Illinois' , to, won’t,. to or choose not can|t, either don’t want courts decid- year have beeii they last and For the whatever. half ,or to [going] not' whether ing through the courts fhéy are. really not, or, jurisdiction it, of case go take this ' belongs j in Illinois. V . decides am[I b]aby have sitting an interest this [*] thing until, [*] iii [*] case.”. Illinois (cid:127) finally stayed, pending action was also resolu- The California Clearly, of the case here in Illinois. the California tion willing comity, court, for the of would to sake have been judgment willingness to here. defer the circuit’s That parties of the same in each suit was absence stay indicative that a sary of the Illinois unneces- was action prevent multiplicity Moreover, it actions. prior-in-time be said action was Illinois cannot deciding In vex or harass whether to Baxter. filed grant deny stay, or the trial court should have argued this considered factor for a whether action to the or Illinois due actions animus Zurich in bringing bringing the suit. Baxter’s motivation in really critical to determina- California properly stayed. tion whether Illinois action was majority point. Clearly, The need not belabor that attempting speedily advantage however, was Baxter shopping itself forum when it filed in nine California days after Zurich filed here. discretionary
Another factor that have should been considered was the likelihood that Illinois complete would have realized some manner of relief via Again, clearly, they the California action. could not. adjudicated action would have Baxter’s rights policy under its with Zurich and undér one excess layer policy another insurer' Such would remaining afford no relief to Baxter’s excess insurers Furthermore, the 17 judgment claimants the Illinois action. any between Zurich and in California clearly judicata would have no res effect remaining excess insurers and claimants named as *14 parties here. conclusion,
In the trial court abused its discretion in granting instant because thresh- requirement old for relief was not section 2— parties, met, the two did involve the actions same argued any way discretionary factor and not one relief. such in this concur- joins special McMORROW
JUSTICE rence.
(No. 79969. MILLER, v. CONSOLIDATED Appellee, ALBERT CORPORATION, Appellant. RAIL Rehearing Opinion June denied 1996.— September 1996. HEIPLE, J., dissenting. MILLER,J., joined by