text:
    HIGHWAY DRIVERS, DOCKMEN, SPOTTERS, RAMPMEN, MEAT PACKING HOUSE AND ALLIED PRODUCTS DRIVERS AND HELPERS, OFFICE WORKERS AND MISCELLANEOUS EMPLOYEES UNION, Local No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al., Plaintiffs-Appellees, v. SALLY WARD, Director of Employment Security, The Department of Employment Security, Defendant-Appellant (BN Transport, Inc., Defendant).
    First District (3rd Division)
    No. 1-88-3042
    Opinion filed July 18, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Kimary Lee, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Donald W. Cohen, of Asher, Gittler & Greenfield, Ltd., of Chicago, for appellees.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant appeals from an order, on administrative review, reversing a decision of the Director of Employment Security (Director). The Director found plaintiffs, Highways Drivers et al., ineligible for benefits under section 604 of the Illinois Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 434). We reverse.

The facts are largely undisputed. Plaintiffs-claimants are dock workers who were members of Local 710 of the International Brotherhood of Teamsters Union, and employed by defendant, BN Transport, Inc. The clerical workers of BN Transport and the dock workers were represented in collective bargaining by Local 710. The collective bargaining agreements of the clerical workers and the dock workers were separate; however, both had a common expiration date.

In the fall of 1984, BN Transport merged with Santa Fe Transportation. Following the merger, BN Transport attempted to take its clerical workers out of their bargaining contract with Local 710 and transfer them into the union of the Santa Fe clericals. A dispute over union recognition arose, and as a result, on December 3, 1984, the BN Transport clericals went out on strike at BN Transport’s facility.

As a show of solidarity, none of the dock workers crossed the picket line; however, none of the dock workers walked the line with the clericals. Hugh Corcoran, the business agent for the dock workers, and an officer of Local 710, testified that the dock workers were given the choice whether to cross the line. Both the dock workers and the picketing clericals received strike pay from the international union. The strike was settled on or about January 19, 1985. Upon their return to work, the dock workers received no changes in any of the terms and conditions of their employment.

Frank Ciaccia, a city driver employed by BN Transport and a member of Local 705 of the International Brotherhood of Teamsters, testified that when he arrived for work on December 3 there was no equipment in the yard and the gates were locked. At 8:30 a.m., he went inside the terminal for a meeting with Payton, the terminal manager, and a few other drivers. They discussed the seniority list and returning to work; however, they could not work because there were no dock hands and no equipment. Ciaccia stated that since there was no work for the drivers there would also have been none for the dock hands. The drivers did not receive strike pay.

Robert Moline, a vice-president at Santa Fe, testified that the union representatives for Local 705 and for the dock workers had informed him that the Local 705 employees and the dock workers had been instructed to honor the clericals’ picket line.

Ralph Perri, vice-president of operations for Santa Fe Transportation, testified that the company was aware, based on an October 1984 letter which he received from the business agents for Locals 710 and 705, that the clericals were going to take some economic actions against the company. On the date the strike began, there was work available for both the dock hands and the city drivers. According to him, some of the city drivers came into the facility and asked if they could report to work; however, none of the dock workers came in.

During the strike, plaintiffs filed a claim for unemployment benefits under section 700 of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 450.) On February 1, 1985, the claims adjudicator determined that plaintiffs were eligible to receive unemployment benefits for the period during the strike. BN Transport appealed that determination. On August 1, 1985, a hearing was held before the Director’s representative, Abe Linderman, to determine whether the claims adjudicator’s determination was erroneous. On September 6, 1985, a hearing de novo on appeal was held before Linderman.

On December 16, 1985, Linderman issued a report recommending that the determination of the claims adjudicator be set aside in part and that claimant dock workers be found ineligible for unemployment insurance benefits. The Director affirmed and adopted his report.

On April 24, 1986, plaintiffs filed a complaint for administrative review (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.), seeking reversal of that part of the Director’s decision which held that the dock workers were ineligible for unemployment. The circuit court reversed the Director’s decision as against the manifest weight of the evidence and contrary to law. Defendant appeals that reversal.

It has long been established that, in an unemployment insurance case, the board is the trier of fact and its factual findings are considered prima facie true and correct. (London v. Department of Employment Security (1988), 177 Ill. App. 3d 276, 279, 532 N.E.2d 294; Ill. Rev. Stat. 1987, ch. 110, par. 3 — 110.) Factual findings will not be disturbed absent a finding that they are against the manifest weight of the evidence. (See Jackson v. Board of Review of the Department of Labor (1985), 105 Ill. 2d 501, 475 N.E.2d 879, superseded by statute as stated in Siler v. Department of Employment Security (1989), 192 Ill. App. 3d 971, 549 N.E.2d 760; Kelley v. Department of Labor (1987), 160 Ill. App. 3d 958, 513 N.E.2d 988.) The same deference is not accorded with respect to legal questions such as the construction of a statute. Northern Trust Co. v. Bernardi (1987), 115 Ill. 2d 354, 365, 504 N.E.2d 89; Zbiegien v. Department of Labor (1987), 156 Ill. App. 3d 395, 510 N.E.2d 422.

Here, the Director found that for the period of the strike, plaintiffs did not cross the picket line, that plaintiffs’ business agent participated in the picketing with the clerical workers, and that plaintiffs received strike benefits for the duration of the strike. These factual findings were not against the manifest weight of the evidence. However, based on these findings, the Director concluded that plaintiffs’ conduct, as a whole, constituted participation in a labor dispute, which disqualified them for unemployment insurance benefits. The Director’s finding that plaintiffs “participated” in the dispute was actually a construction of section 604 of the Act; accordingly, we need not defer to the Director’s findings here as we would to her findings of fact.

In their brief, plaintiffs devote a fair amount of discussion to whether they had a direct interest in or financed the dispute. It is not contended that plaintiffs’ disqualification resulted from either direct interest or from financing the dispute. The singular issue presented for our review is whether, as a matter of law, plaintiffs’ conduct constituted participation under the meaning of the Act.

Section 604 of the Illinois Unemployment Insurance Act provides, in pertinent part:

“An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed. ***
* * *
This Section shall not apply if it is shown that (A) the individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute ***.” Ill. Rev. Stat. 1987, ch. 48, par. 434.

Under the Act, a claimant, to avoid ineligibility, must establish that he falls within both of the statutory exceptions. (Cottini v. Cummins (1956), 8 Ill. 2d 150, 154, 133 N.E.2d 263.) While clearly the claimants here did not belong to the same grade or class as the striking employees, we believe that they did participate in the labor dispute and were correctly disqualified for unemployment insurance.

Plaintiffs place great reliance on General Motors Corp. v. Bowling (1981), 85 Ill. 2d 539, 426 N.E.2d 1210. There, our supreme court held that payment into a strike fund by members of the same union as the striking union members could not be considered financing the strike. Thus, such payments would not be a disqualifying factor for purposes of eligibility for unemployment insurance. We find General Motors to be inapposite to the present case because the court there made no finding as to the effect of receipt of strike benefits on eligibility for unemployment insurance.

Participation is not defined in the Act. However, Illinois courts which have addressed the issue have determined that in order to show that an employee is participating in a labor dispute, an employer must show more than the employee’s failure to cross a picket line. (Nestle Co. v. Johnson (1979), 68 Ill. App. 3d 17, 20, 385 N.E.2d 793; Owens-Illinois, Inc. v. Bowling (1981), 99 Ill. App. 3d 1117, 429 N.E.2d 172, aff’d as modified (1983), 95 Ill. 2d 397, 447 N.E.2d 1324.) Participation may be shown by other evidence in a case where the failure to cross a picket line is also in evidence. Nestle, 68 Ill. App. 3d at 20.

Plaintiffs argue that neither the receipt of the strike benefits, nor the failure to cross the picket line, alone, would constitute participation in the strike. Therefore, they conclude, this conduct should not be considered in the aggregate as a disqualifying factor. We disagree.

Corcoran testified that in his 35 years as a union member, he had not heard of strike benefits being paid to any union member who crossed a picket line and went to work. At oral argument, plaintiffs stated that strike benefits could be paid for a variety of reasons; however, they offered none. If the strike benefits here were paid for reasons other than to compensate the dock workers for their participation, it was incumbent upon plaintiffs to produce some proof of that. Plaintiffs did no more than assert that they had a right not to cross the picket line.

We believe that participation in a strike is the triggering event for the payment of strike benefits. The payment of these benefits enabled plaintiffs to remain away from work until the dispute was settled. Once the dispute was settled, payment of strike benefits ceased. We do not consider the facts here to be so unrelated as to require us to consider each of them in isolation.

Neither party has directed this court to any cases which directly address the issue of whether receipt of strike benefits constitutes participation in a labor dispute. Our research has yielded only sparse authority on the issue, and none in Illinois. Of those cases which we reviewed, receipt of strike benefits was a factor weighing in the determination of disqualifying participation.

Campos v. California Employment Development Department (1982), 132 Cal. App. 3d 961, 966, 183 Cal. Rptr. 637, 639, a case which addressed whether workers on indefinite layoff were disqualified from receiving unemployment benefits, stated that in making a determination as to whether an employee is “personally responsible” for his unemployment and therefore ineligible to receive unemployment insurance, courts have relied on such factors as union membership, identity of interest in the dispute, whether work was actually available during the strike, picketing activities and receipt of strike benefits.

In Brown v. Brown (La. App. 1963), 158 So. 2d 305, cert. denied (1964), 377 U.S. 979, 12 L. Ed. 2d 747, 84 S. Ct. 1885, members of the nonstriking local union, which was a member of the same international union as the striking local union, were found to have participated in the labor dispute between the striking local and the employer by recognizing and refusing to cross the picket lines. There, the court held that the nonstriking employees’ interest in the strike was manifested considering the proffer of strike benefits made by the international and the fact that said benefits were being held in escrow for payment to the claimants upon their disqualification for unemployment benefits becoming final.

Similarly, in Post-Times Co. v. Turner (Fla. App. 1960), 123 So. 2d 359, some of the members of the International Typographical Union, Local 162, refused to cross the picket line of a separate labor union, the International Stereotypers and Electrotypers Union, Local 106. For the period of time that the dispute was actively in progress, the nonstriking employees were considered to be participating in the strike and, therefore, not eligible to receive unemployment benefits. (123 So. 2d at 361.) Subsequent to the strikers’ withdrawal of their picket line, but during the period of the labor dispute, the nonstriking members applied for unemployment insurance, and an order was entered finding them eligible. The appellate court quashed the order, holding that among the factors which supported a conclusion of ineligibility, the claimants received strike benefits from their union for the duration of the picketing and for the period subsequent to the withdrawal of the picket line. The court stated that while these facts standing alone would not necessarily preclude the right to unemployment compensation benefits, they were factors to be considered. (123 So. 2d at 363.) Other factors which the court considered were that the claimants voluntarily chose not to cross the picket line, while other members of their union did so, and that the claimants did not approach the employer for the purpose of resuming work. 123 So. 2d at 363.

Plaintiffs, in their brief, argue that the benefits were paid to them as a result of the clerical workers’ strike and that those benefits were not contingent upon their “direct participation in the strike.” By this language, we understand that eligibility for strike benefits, while not contingent upon “direct participation,” required at least some participation in the strike activity. Strike participation might take several forms, for example, performing kitchen duty to feed those picketing, distributing strike assistance checks, or transporting strikers to State welfare offices to receive food stamps. (See Kolinske v. Lubbers (D.C. Cir. 1983), 712 F.2d 471.) The Act makes no distinction between direct or indirect participation. The disqualifying factor is simply “participation.”

The problems attendant to assigning qualifying characteristics to conduct for the purpose of determining whether it constitutes participation are apparent. To do so would set the stage for those union members who, though appearing detached and indifferent, have as much of an impact on attaining the goals of the strike as those persons who actually carry the picket signs. Each case must necessarily turn on its own facts. While we are not persuaded that Corcoran’s participation in the strike is a factor, we deem plaintiffs’ choice not to cross the picket line, together with their failure to inquire of the availability of work and their receipt of strike benefits for the duration of the labor dispute, to be factors which evidence their participation in the strike.

The strike benefit fund is, in a sense, a private insurance arrangement against unemployment due to strikes. (General Motors Corp. v. Bowling (1981), 85 Ill. 2d 539, 545-46, 426 N.E.2d 1210.) The purpose of strike benefits is to aid union members engaged in strikes or affected by lockouts. As in the case of some other types of insurance, the union member is required to cooperate with the union in carrying out its strike objectives, in aid of which strike benefits are paid. (Worcester Telegram Publishing Co. v. Director of Division of Employment Security (1964), 347 Mass. 505, 514, 198 N.E.2d 892, 898.) The payment of benefits is predicated on the fact that there is a strike.

Plaintiffs would have this court believe that the union paid them strike benefits absent any requirement that they participate in strike activities. However subtle their participation, receipt of the strike benefits enabled the dock workers to support the clerical workers’, strike and added strength to their cause. The combined benefits from unemployment insurance and the strike fund would enable the striking members to prolong the work stoppage and delay settlement of the labor dispute.

Contributions into the unemployment insurance fund by employers are compulsory. (Ill. Rev. Stat. 1987, ch. 48, par. 550.) To permit the dock workers to collect both strike benefits and unemployment insurance would effectively place the employer in the position of subsidizing the strike. Such a result would be unsound.

Moreover, to indulge such double dipping would be unfair to employers and employees alike. Employers would be providing benefits to those employees for whom it bears no responsibility for the lack of wages. More importantly, such an allowance creates the risk of depleting these reserve funds, thereby depriving potential beneficiaries, who are involuntarily separated from employment, of the very protection for which the fund was created.

Clearly, the legislature intended the Unemployment Insurance Act to safeguard unfortunate individuals from economic insecurity due to involuntary unemployment. (Ill. Rev. Stat. 1987, ch. 48, par. 300.) The participation proviso was intended to alleviate the unfair disqualification of innocent victims of labor disputes who are involuntarily separated from employment. The key factor is involuntary unemployment. Thus, it is not disputed that the employees who are separated from their employment due to a strike have the right not to cross the picket line and, even though work is available, this would not abrogate their eligibility for unemployment insurance benefits as long as they were not voluntarily participating in the dispute.

However, we believe that the dock workers here use the participation proviso as a shield for their participation in the strike. The failure to cross the picket line is a factor to be taken into consideration in determining participation. It simply cannot be the only factor upon which disqualification for unemployment insurance is based. “[Participation may be shown by other evidence in a case where the failure to cross a picket line is also in evidence.” (Emphasis added.) Nestle, 68 Ill. App. 3d at 20.

The dock workers had the right not to cross the picket line and not be penalized for exercising that right. However, their refusal to cross the line does not require a conclusion of no participation, especially in light of the other indicia of participation. The logical extension of plaintiffs’ reasoning is that employees could refuse to cross picket lines, voluntarily engage in a myriad of activities which support the strike, and, under the protection of the participation proviso, disclaim participation in the labor dispute.

Persuaded by the decisional law of our sister States, and our belief that eligibility for strike benefits is contingent upon participation in strike activity, we conclude that plaintiffs’ failure to cross the picket line and their receipt of the strike benefits constituted participation in the labor dispute. Plaintiffs were correctly disqualified from receiving unemployment insurance.

For the foregoing reasons, we reverse the judgment of the circuit court.

Reversed.

CERDA, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE CERDA

license: Public Domain

text:
    JOSEPH A. LONGO, Plaintiff-Appellant, v. AAA-MICHIGAN, a/k/a Auto Club Insurance Association, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-89-0477
    Opinion filed July 18, 1990.
    Rehearing denied August 29, 1990.

      Joseph A. Longo, of Mt. Prospect, appellant pro se.

    Williams & Montgomery, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Joseph A. Longo, appeals from the dismissal of his complaint for lack of personal jurisdiction. He argues that the Michigan defendants, AAA-Michigan, a/k/a Auto Club Insurance Association (ACIA), and Auto City Auto Recovery (ACAR), had sufficient Illinois contacts for jurisdiction and that the trial court erred in restricting discovery.

Plaintiff’s complaint alleged that he was a resident of Illinois, that ACAR was a Michigan corporation, and that ACIA was part of the nationwide AAA organization that had offices in Illinois. On July 18, 1987, ACIA and ACAR sold to Don Glime, d/b/a Perri Auto Sales, a 1980 Porsche automobile. ACIA and ACAR gave to Glime an odometer statement which was separate from the title and which verified that the mileage was not actual. ACIA and ACAR did not complete the odometer statement on the reverse side of the title. Upon plaintiff’s purchase of the automobile, Glime gave to plaintiff a separate odometer statement that stated that the mileage was actual.

Plaintiff further alleged that ACIA and ACAR knew or should have known the importance of completing the odometer statement on the reverse of the title, that a purchaser would rely on the title, that odometer fraud either could have been prevented or its likelihood reduced by the completion of the odometer statement and purchase price on the reverse of the title, and that the automobile could or would be purchased ultimately by a nonresident of Michigan.

Count II requested damages under the Illinois Consumer Fraud and Deceptive Business Practices Act (111. Rev. Stat. 1987, eh. 121V2, par. 261 et seq.), and count III requested damages under the Illinois odometer act.

ACIA and ACAR were served in Michigan; AAA-Michigan was not served. ACIA and ACAR filed special and limited appearances and moved to dismiss the complaint for lack of personal jurisdiction.

Defendants filed the affidavit of C.R. Benson, ACIA’s vice-president and secretary, in support of the motion to dismiss. Benson swore that: (1) ACIA was a Michigan reciprocal interinsurance exchange; (2) ACIA did not own or use any property in Illinois; (3) ACIA did not transact business in Illinois; (4) ACIA did not maintain an office, personnel or telephone listings in Illinois; (5) ACIA did not advertise or solicit business in Illinois; (6) ACIA was not a part or a member of the national AAA; and (7) ACIA was not affiliated with any Illinois AAA organization. An affidavit of William Morman, general counsel of ACIA, also swore to these statements.

Defendants also filed the supporting affidavit of Paul F. Lamoureux, vice-president of ACAR, who swore that: (1) ACAR was an auction car dealer organized under Michigan law with its offices located in Michigan; (2) ACAR did not own or use any property in Illinois; (3) ACAR did not transact any business in Illinois; (4) ACAR did not maintain an office, personnel or telephone listings within Illinois; (5) ACAR did not advertise or solicit business in Illinois; (6) the sale of the automobile and the transfer of its title from ACAR and ACIA to Glime occurred in Michigan; (7) ACAR had no contact with plaintiff; and (8) Glime was not ACAR’s agent.

A responsive affidavit of plaintiff swore that he spoke to employees Daniel Converse, claims manager Mitchell, and Jim Richards of “Auto Club, ‘AAA’ ” who “indicated that they had offices in Chicago” and that “they could submit their file on the subject automobile to their Chicago office from where somebody could testify.” In another affidavit, plaintiff swore that: (1) he was injured in Illinois; (2) the automobile’s defects were discovered in Illinois; (3) the repairs were made in Illinois; (4) his mental anguish, anxiety and despair were suffered in Illinois; and (5) the statements made by AAA’s Dear-born, Michigan, office referred to in the first affidavit were made by AAA employees and were party admissions.

Plaintiff moved to take discovery, and he was given leave to depose one representative of defendants. Later, plaintiff was given leave to depose C.R. Benson of ACIA, but plaintiff filed a motion to compel the attendance of a suitable deponent when Benson became unavailable. Plaintiff desired to depose a “managerial substitute” rather than ACIA’s in-house counsel on the basis that in-house counsel would not be aware of how business was actually conducted, which was allegedly important to determine how “AAA-Michigan” related to “AAA-Illinois.” Plaintiff also requested leave to file interrogatories or to request documents for the deposition although the court already had denied leave to file interrogatories.

Plaintiff’s motion to compel the deposition of Benson and for additional discovery was denied. ACIA was ordered to present Mr. Morman, ACIA’s general counsel, to be deposed. An affidavit of one of defendants’ attorneys stated that Morman told him that Morman was the most knowledgeable person in ACIA as to its business activities as they related to jurisdiction.

Morman testified in his deposition that he had been an attorney for Automobile Club of Michigan (ACM) for 30 years and that he sometimes was counsel for ACIA. ACM was a member of the AAA, which was a national motor club service organization. State clubs were organized under their own State laws and rendered service to members of other clubs travelling around the country. Various companies were part of AAA of Michigan, including a travel agency and other insurance companies. Each club had its own special services and benefit programs for its own members.

ACIA was a separate legal entity from ACM but ACIA and ACM had common officers and directors, and employees of both companies would use some Michigan facilities. AAA-Michigan was only an identification term; it was not a legal entity. ACIA did not have meetings in Illinois. ACIA did not place the advertisement for AAA in the toll-free directory, and ACIA was not listed in the directory. ACIA wrote insurance in Michigan and only for ACM members, but AAA membership was purchased separately from ACIA’s insurance. A member of AAA-Michigan could obtain travel services and emergency road service from a Chicago Motor Club office, and the cost would be borne by ACM.

If one of ACIA’s insureds had an automobile accident in Illinois, ACIA would retain an Illinois company to assess the damage to the automobile. ACIA would request a “claim service” to be provided by the “insurance affiliate of the Chicago Motor Club,” but ACIA and the Chicago Motor Club did not correspond. Ordinarily, an ACIA claims person would not come to Illinois in connection with an insured’s accident there, but it was possible that one would come to Illinois in order to speak to attorneys about a claim in litigation. The claim would be settled in the Michigan office.

Morman further testified that the automobile at issue had been stolen and that it was found after ACIA had taken title upon making a claim payment to its insured. Automobiles owned by ACIA were sold through various auctions. If an automobile was involved in an out-of-State collision, the salvage would not be returned to Michigan but probably would be sold as salvage by the claims service company to salvage dealers. Repairable cars could be repaired in Illinois.

On January 17, 1989, plaintiff moved to amend his complaint based on the deposition testimony. Leave was granted, and the complaint was amended to add that: (1) AAA-Michigan had affiliate offices in Illinois; (2) AAA-Michigan hired Illinois law firms and adjusters; (3) AAA-Michigan advertised in Illinois by including its name and addresses in a booklet distributed throughout Illinois at AAA offices; (4) AAA-Michigan shared with other AAA branches a common telephone number which was published in Illinois; (5) AAA-Michigan solicited business from AAA-Illinois members who were moving to Michigan; (6) AAA-Illinois informed AAA-Michigan of these moves and vice versa-, (7) AAA-Michigan regularly sold automobiles acquired from its insureds at an auction which was frequented by numerous non-Michigan purchasers; (8) AAA-Michigan sent these automobiles into the stream of commerce; (9) defendants jointly and/or severally presented the title to the broker with a statement that the mileage was 58,408; (10) the automobile was sold to the broker for $5,100; and (11) plaintiff purchased it for $9,000 with a stated mileage of 59,125.

In another affidavit in opposition to the motion to dismiss, plaintiff swore that: (1) Morman had been unable to testify about the activities of AGAR except that it was the agent of AAA-Michigan; (2) Morman had been unable to testify about the “various procedures” of AAA-Michigan; (3) in the week of December 5, 1988, plaintiff dialed from Illinois the AAA toll-free number and was told upon inquiry that ACIA was part of AAA; (4) plaintiff was given ACIA’s telephone number, and he verified it by telephoning; (5) plaintiff also spoke to an agent whose name he would not reveal in a branch office of AAA in Naperville, Illinois, who stated that: (a) if an accident occurred in Illinois, AAA-Illinois would tow the insured of ACIA; (b) tour books given to AAA-Michigan members were charged to Michigan; (c) if a Michigan member moved to Illinois, he had to submit his Michigan membership card to the AAA-Illinois office to get an enrollment credit; (d) the card would then be sent to AAA-Michigan; and (e) a log of transferees from Michigan was sent to the main office of AAA-Illinois, and she believed that this information was relayed to AAA-Michigan; (6) in the same week plaintiff spoke to another AAA-Illinois office and he was told that AAA-Illinois and AAA-Michigan by postcard informed each other when one of their members moved to the other State and that each office “in effect” solicited business and helped each other obtain business when a member moved; and (7) in the same week plaintiff spoke to John Barnard of AAA-Illinois, who stated that AAA-Michigan and AAA-Illinois would cancel the insurance policy and membership card of a member moving to the other State.

Attached to the affidavit was a letter from plaintiff to John Barnard of AAA-Chicago Motor Club summarizing their telephone conversation on how plaintiff’s friend from Michigan would transfer his membership in ACIA to the AAA-Chicago Motor Club. Also attached was a letter from another individual regarding the transfer of plaintiff’s friend’s membership from AAA-Michigan to AAA-Chicago Motor Club which included a statement that he would advise AAA-Michigan that the friend would not be renewing her policy. Also attached was a printed listing of affiliated AAA clubs and branches.

The trial court dismissed the amended complaint for lack of personal jurisdiction, and the action was dismissed with prejudice.

Plaintiff first argues that defendants waived jurisdiction by not limiting their arguments below to contesting jurisdiction, by attacking the sufficiency of the complaint, by engaging in settlement discussions, and by stating in a pleading in support of their motion to dismiss that the court should not consider plaintiff’s amended complaint. Plaintiff cites Koplin v. Saul Lerner Co. (1964), 52 Ill. App. 2d 97, 101, 201 N.E.2d 768, in which the court stated that if defendants had filed a motion to strike, they would have admitted the court’s jurisdiction.

Defendants filed special and limited appearances, and they contested jurisdiction by filing a motion to dismiss. Defendants did not contest the merits of the claim in their pleadings filed on the issue of jurisdiction, and any references to the complaint were in connection with the jurisdiction issue. Plaintiff’s representation that settlement was discussed is unsupported in the record, and he cannot supplement the record by his “testimony” in his brief. Even if it were apparent that settlement discussions took place, defendants could not thereby concede the court’s jurisdiction.

Plaintiff argues that there was personal jurisdiction over defendants in Illinois because they did business in Illinois, had an Illinois property interest, and, within the meaning of the long-arm statute, transacted business and committed a tort in Illinois.

Plaintiff has the burden of proving jurisdiction over nonresident defendants. (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 310, 489 N.E.2d 1365.) Due process requires that in order to assert in personam jurisdiction over a nonresident corporate defendant who is not present in Illinois, defendant must have certain minimum contacts with Illinois so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L. Ed. 95, 102, 66 S. Ct. 154, 158.) The casual presence of the corporate agent or his conduct of single or isolated items of activities on the corporation’s behalf are not enough to subject the corporation to suit on causes of actions unconnected with the activities there. International, 326 U.S. at 317, 90 L. Ed. 2d at 102-03, 66 S. Ct. at 158-59.

Jurisdiction over a foreign corporation may be obtained under the theory that by doing business in Illinois, it is deemed to have submitted to Illinois jurisdiction. (Cook Associates, Inc. v. Lexington United Corp. (1981), 87 Ill. 2d 190, 196, 429 N.E.2d 847.) The corporation has to conduct business to the extent to warrant the inference that it subjected itself to Illinois jurisdiction. (Pembleton v. Illinois Commercial Men’s Association (1919), 289 Ill. 99, 104, 124 N.E.2d 355.) Activities greater than solicitation by employees who have only authority to solicit business in Illinois are required. Cook, 87 Ill. 2d at 201.

Another possible basis for jurisdiction is the long-arm statute under which a nonresident who, in person or through an agent, transacts business or commits a tortious act in Illinois submits himself to the jurisdiction of Illinois as to any cause of action arising from the doing of such acts. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 209(a)(1), (aX2).) A defendant is not amenable to service under the long-arm statute on the basis of the transaction of business in Illinois if the cause of action did not arise from the transaction of business in Illinois. Cook, 87 Ill. 2d at 198.

The only connections of ACIA with Illinois were the hiring of Illinois attorneys to litigate claims under its insurance policies, the hiring of Illinois claim service companies to assess the damage to automobiles damaged in Illinois, and the sale of automobiles in Illinois as salvage. These activities were merely incidental to ACIA’s business of insuring automobiles owned by Michigan residents who were ACM members. The record also does not indicate any activity of AGAR in Illinois or affecting Illinois other than the selling in Michigan of automobiles which could be bought by Illinois residents. Defendants were not doing business in Illinois for purposes of jurisdiction of Illinois courts. (See Reeves v. Baltimore & Ohio R.R. Co. (1988), 171 Ill. App. 3d 1021, 1028, 526 N.E.2d 404 (where tort occurred outside of Illinois, where any business transacted in connection with the job on which plaintiff was injured did not occur in Illinois, and where defendant did not derive any income from Illinois at the time it was sued, defendant was not doing business in Illinois).) In addition, jurisdiction could not be based on the transaction of business prong of the long-arm statute because the cause of action did not arise from any business transaction in Illinois.

Plaintiff’s amended complaint made many references to AAA-Michigan having extensive contacts with Illinois. However, AAA-Michigan is not a legal entity. ACM was a member of AAA-Michigan, but was never made a defendant in this cause. Plaintiff’s affidavits, not based on personal knowledge, are inadequate on their face under Illinois Supreme Court Rule 191 (107 Ill. 2d R. 191) to rebut the affidavits and depositions of ACIA’s representative. Therefore, any contacts that AAA-Michigan might have had with Illinois cannot be attributed to the defendants.

Plaintiff next cites several cases in support of his additional argument that defendants committed a tort in Illinois because the injury occurred there upon his discovery of his economic loss. In Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 435-36, 176 N.E.2d 761, a product that was allegedly constructed in another State exploded in Illinois and injured the plaintiff, and the court held that the place of a wrong was where the last event took place which was necessary to retider the actor liable and that the tort was committed in Illinois because the negligence in manufacturing could not be separated from the injury.

In Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App. 3d 789, 795, 383 N.E.2d 1379, the court stated that a single tortious act occurring in Illinois would establish jurisdiction there even without other Illinois contact or presence and that the situs of the tort for the purposes of a predecessor of the present long-arm statute was where the injury occurred. The court held that no injury occurred in Illinois as a result of the alleged acts of unfair competition because the only injury of economic loss was suffered in New York. Mergenthaler, 66 Ill. App. 3d at 795-96.

In Bodine’s, Inc. v. Sunny-O, Inc. (N.D. Ill. 1980), 494 F. Supp. 1279, 1282, there was long-arm jurisdiction under the commission of tort prong over a nonresident manufacturer who was sued by an Illinois resident for tortious fraud in selling inferior goods because plaintiff was injured in Illinois. The court referred to Gray’s statement that the situs of the tort was the place of the last event necessary to render the actor liable, and, on the basis that the injury was economic rather than physical, the court rejected defendant’s argument that the place of injury was not in Illinois. Bodine’s, 494 F. Supp. at 1282-83.

In Wimmer v. Koenigseder (1984), 128 Ill. App. 3d 157, 470 N.E.2d 326, a suit based on the death of a teenager who drank liquor served at defendants’ Wisconsin taverns was held to have arisen from the commission of a tortious act within the meaning of the long-arm statute. (Wimmer, 128 Ill. App. 3d at 163.) It was held that the last event that took place necessary for liability was the injury in Illinois (Wimmer, 128 Ill. App. 3d at 164), but Wimmer was reversed in a decision that did not address the jurisdiction issue. Wimmer v. Koenigseder (1985), 108 Ill. 2d 435, 484 N.E.2d 1088.

Defendant cites Green v. Advance Ross Electronics Corp. (1981), 86 Ill. 2d 431, 438, 427 N.E.2d 1203, which held that economic injury-suffered by an Illinois parent corporation was too remote for long-arm jurisdiction where funds were misappropriated in Texas from a subsidiary corporation. Green has been interpreted as having limited the general rule that a tort occurs where the harm is felt by its holding that, if the only relevant Illinois fact were that the consequences of misconduct were felt in Illinois, then the tortious act was not committed in Illinois. (See e.g., Club Assistance Program, Inc. v. Zukerman (N.D. Ill. 1984), 594 F. Supp. 341, 346. But see MC Club Services, Inc. v. Stovall (N.D. Ill. 1989), 714 F. Supp. 370, 373 (interpretation that Green’s holding was not based on fact that injury in Illinois was economic, but on fact that it was indirect).) The Illinois Supreme Court has since held that an economic loss which is felt in Illinois is not sufficient for jurisdiction if the acts occurred outside of Illinois. R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 312, 489 N.E.2d 1365.

The situs of the last event necessary to make defendants liable for fraud was not Illinois, where plaintiff discovered the fraud and repaired the automobile, but was Michigan, because that is where the fraud occurred. The fact that plaintiff felt the consequences of the nonresident’s tortious acts, which took place outside of Illinois, in his “Illinois pocketbook” was insufficient to confer jurisdiction. Mott Corp. v. Montanya (1986), 141 Ill. App. 3d 943, 946, 491 N.E.2d 98.

Plaintiff next argues that ACIA had a property interest in all the insureds’ automobiles traveling in Illinois and that ACIA’s obligation to insure these automobiles created quasi-w rem jurisdiction. Plaintiff also argues that ACIA had a property interest in the potential judgments or settlements in Illinois lawsuits. In support, plaintiff cites In re Estate of Hoffman (1972), 6 Ill. App. 3d 438, 286 N.E.2d 103, Seider v. Roth (1966), 17 N.Y.2d 111, 216 N.E.2d 312, 269 N.Y.S.2d 99, and Lefcourt v. Sea Crest Hotel & Motor Inn, Inc. (1967), 282 N.Y.S.2d 896, 54 Misc.2d 376.

A quasi-m rem action is based on a claim for money begun by attachment or other seizure of property when the court has no jurisdiction over the person of the defendant but has jurisdiction over a thing belonging to him or over a person who either is indebted or owes a duty to defendant. (Belcher Co. of Alabama, Inc. v. M/V Maratha Mariner (5th Cir. 1984), 724 F.2d 1161, 1163-64.) The theory of quasi-in rem jurisdiction is that the courts have the power to determine the relative rights of the parties because property is situated in the State. Javorek v. Superior Court (1976), 17 Cal. 3d 629, 638 n.8, 131 Cal. Rptr. 768, 775 n.8, 552 P.2d 728, 735 n.8.

Hoffman (6 Ill. App. 3d at 441) held that property in Illinois was an asset sufficient to confer jurisdiction on Illinois courts to admit a will to probate, but it does not provide authority for quasi-ire rem jurisdiction over a suit against nonresident corporate defendants. Seider (17 N.Y.2d 123, 216 N.E.2d 312, 269 N.Y.S.2d 107) held that jurisdiction in New York where defendant’s insurer resided was proper over a personal injury action arising out of Vermont because the policy obligation to defend was attached as a debt owed to defendant by the insurer. Lefcourt (282 N.Y.S.2d at 899, 54 Misc.2d at 378) found that an attachment served upon a corporate defendant’s insurer which was licensed to do business in New York was constitutionally sufficient to sustain quasi-ire rem jurisdiction in New York over a personal injury suit arising out of Massachusetts although the corporate defendant neither did business nor owned property in New York.

In the instant case, there was no seizure of any property of defendants in Illinois, and there was no basis to find that defendants owned property in Illinois. We find that there was no quasi-ire rem jurisdiction.

Plaintiff also argues that the trial court erred in not permitting discovery of AGAR, in prohibiting written discovery of ACIA, and in not permitting the deposition of ACIA’s manager because ACIA’s general counsel was unable to answer many questions concerning the procedures of defendants.

The trial court has broad discretion in supervising discovery. (In re Marriage of Falstad (1987), 152 Ill. App. 3d 648, 653, 504 N.E.2d 908.) The record reflects that plaintiff was able to obtain from Morman answers to questions relevant to jurisdiction over ACIA. In addition, it was not an abuse of discretion to prohibit additional discovery in light of ACAR’s affidavit which swore that AGAR was a Michigan auction car dealer that did not transact business in Illinois, own or use property in Illinois, maintain an office, personnel or telephone listings in Illinois, or advertise or solicit business in Illinois.

The judgment of the circuit court is affirmed.

Affirmed.

WHITE and FREEMAN, JJ., concur.


text:
    DONALD J. STEPHAN, Adm’r of the Estate of William W. Stephan, Deceased, et al., Plaintiffs-Appellants, v. SELVIC MARINE TOWING COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-89-1093
    Opinion filed July 18, 1990.

      Michael W. Rathsaek, of Chicago, for appellants.
    Brydges, Risenborough, Morris, Franke & Miller, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The plaintiff, Donald Stephan, as administrator of the estate of William Stephan, deceased, appeals from a judgment of the circuit court dismissing his wrongful death action for being time barred. The question presented is whether a plaintiff may invoke Illinois’ “saving” statute (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217) to extend the period of limitation in actions brought pursuant to the Jones Act (46 U.S.C. §688 (Supp. 1987)).

The plaintiff’s decedent was employed as an engineer by the Selvic Marine Towing Corporation (Selvic), which is engaged in the business of towing marine vessels on the Great Lakes. On November 5, 1980, the plaintiff’s decedent was on board the MW Lauren Castle, a towing vessel owned by Selvic, when that vessel sank after colliding with the SIS Amoco Wisconsin. At the time, the MW Lauren Castle had been towing the S/S Amoco Wisconsin.

The plaintiff filed an action against Selvic and three Selvic employees pursuant to the Jones Act on November 7, 1983, in the United States District Court for the Eastern District of Wisconsin. On May 16, 1984, the district court dismissed the plaintiff’s action for want of prosecution pursuant to local rule when the plaintiff failed to obtain service within six months after the action was filed. On May 16, 1985, plaintiff filed the present action in the circuit court of Cook County. A special process server was appointed, and the defendant was served on July 18, 1985. Although the Federal action was timely filed, the trial court dismissed the plaintiff’s State action, holding that our “saving” statute does not apply in Jones Act cases and that the plaintiff’s action was time barred.

The Jones Act, which expressly incorporates the provisions of the Federal Employers’ Liability Act (45 U.S.C. §51 et seq. (1987)), provides in pertinent part as follows:

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law *** and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable.” (46 U.S.C. §686 (1982).)

Section 56 of the Federal Employers’ Liability Act (FELA), which confers concurrent jurisdiction upon the States, contains a three-year statute of limitations. (45 U.S.C. §56 (1987).) The plaintiff’s Federal action was filed on the last day of the statutory period, which would have expired on November 5, 1983, except that November 5, 1983, fell on a Saturday.

Our “saving” statute, section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217), permits a plaintiff to refile an action that has been previously dismissed for want of prosecution within the remaining period of limitations or within one year from the date of dismissal “whether or not the time limitation for bringing such action [has expired].” Section 13 — 217 grants an absolute right to refile to qualified plaintiffs regardless of whether or not they have diligently prosecuted their claims. (Olson v. Dwinn-Shaffer & Co. (1983), 114 Ill. App. 3d 925, 927, 449 N.E.2d 882.) Section 13 — 217 applies not only to actions initially filed in Illinois, but it also applies to actions originally brought in foreign courts if the dismissal in the foreign court is equivalent to the types of dismissals enumerated in section 13 — 217. (Olson, 114 Ill. App. 3d at 928.) Where a dismissal in a Federal court for want of prosecution is without prejudice, as is the case here, the dismissal is equivalent to our State court dismissal for want of prosecution and has no res judicata effect. Olson, 114 Ill. App. 3d at 928.

Saving statutes, or revival statutes as they are sometimes called, avoid hardship by extending the running of statutes of limitations where cases are dismissed for procedural reasons unrelated to the merits so that the plaintiff can have his day in court. (Brown v. Tinder (1977), 48 Ill. App. 3d 489, 492, 359 N.E.2d 494.) Statutes of limitations, which afford defendants protection from having to defend stale claims (Kristan v. Belmont Community Hospital (1977), 51 Ill. App. 3d 523, 527, 366 N.E.2d 1068), no longer serve their purpose where an action has been filed within the applicable statutory period only to be dismissed without an adjudication on the merits. In that situation, the defendant has been put on notice of the claim against him and cannot be prejudiced if the applicable statute of limitations is extended so that the action can be properly commenced. Kristan, 51 Ill. App. 3d at 527.

The trial judge held, however, that application of section 13 — 217 is precluded by the Federal rule enunciated in Burnett v. New York Central R.R. Co. (1965), 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050, that State “saving” statutes must yield to the rule of national uniformity where an action is governed by Federal law. In Burnett, a railroad employee brought an action in the State of Ohio under the FELA. The suit was dismissed for improper venue, and the employee filed the identical action in Federal court because the State action was not transferable under Ohio law. Although the State action had been timely filed, the Federal action was dismissed because it had not been instituted within the FELA’s limitation provision. The Supreme Court reversed, holding that the FELA statute of limitations was tolled during the pendency of the Ohio action. Burnett, 380 U.S. at 426, 13 L. Ed. 2d at 944, 85 S. Ct. at 1053.

In fashioning a Federal rule for determining how long a procedurally defective State action tolls the FELA statute of limitations, the Court rejected the employee’s solution that State “saving” statutes ought to be incorporated. (Burnett, 380 U.S. at 432-33, 13 L. Ed. 2d at 948, 85 S. Ct. at 1057.) The Court noted that not all States have “saving” statutes, and of the States that do have such statutes, the scope and additional time allowed differ from State to State. (Burnett, 380 U.S. at 433, 13 L. Ed. 2d at 948, 85 S. Ct. at 1057.) The Court stated that such incorporation of State “saving” statutes would defeat the aim of national uniformity served by the Act’s limitation provision. (Burnett, 380 U.S. at 433, 13 L. Ed. 2d at 948, 85 S. Ct. at 1057.) Instead, the Court decided that “the limitation provision is tolled until the state court order dismissing the state action becomes final by the running of the time during which an appeal may be taken or the entry of a final judgment on appeal.” (Burnett, 380 U.S. at 435, 13 L. Ed. 2d at 949, 85 S. Ct. at 1058.) Although the rule formulated by the Court produces nonuniformity since the time allowed for taking appeals differs from State to State, the Court concluded that State “saving” statutes were far less uniform. (Burnett, 380 U.S. at 435, 13 L. Ed. 2d at 949, 85 S. Ct. at 1058.) Because the plaintiff in the instant case filed his action on the last day of the statutory period, there was no time remaining that could be tolled during the pendency of the Federal action.

The plaintiff asserts that Burnett is limited to its facts because the action was brought under the FELA as opposed to the Jones Act and involved a plaintiff who was dismissed for improper venue in a State that did not have a “transfer” statute. The plaintiff further maintains that actions involving the railroad industry have posed special problems for the courts due to the organization and complexity of that industry and are therefore different from actions involving the shipping industry. The plaintiff concludes therefore that there is no way to know whether the Burnett Court would have given the same treatment to a Jones Act case. The plaintiff then refers us to a preBurnett decision, Breneman v. Cincinnati, New Orleans & Texas Pacific Ry. Co. (1961), 48 Tenn. App. 290, 346 S.W.2d 273, which applied a State “saving” statute to a FELA case. The plaintiff also contends that the policy of national uniformity has been eroded by the recent decision in Wilson v. Garcia (1985), 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938. In Wilson, the Supreme Court held that State statutes of limitations governing personal injury actions are the most appropriate statutes of limitations for section 1983 civil rights cases. (Wilson, 471 U.S. at 280, 85 L. Ed. 2d at 269, 105 S. Ct. at 1949.) Therefore, the plaintiff urges us to make a departure from the rule of uniformity in Jones Act cases.

We find the plaintiff’s arguments unpersuasive as we do not read Burnett so narrowly. It is also apparent that Congress chose to treat the railroad and shipping industries similarly, as the Jones Act expressly incorporates the FELA. In discussing the FELA, the Burnett Court wrote:

“This Court has long recognized that the FELA ‘has a uniform operation, and neither is nor can be deflected therefrom by local statutes.’ [Citations.] This Court has also specifically held that ‘[t]he period of time within which an action may be commenced is a material element in ... [a] uniformity of operation’ which Congress would not wish ‘to be destroyed by the varying provisions of the state statutes of limitation.’ [Citation.]” (Burnett, 380 U.S. at 433, 13 L. Ed. 2d at 948, 85 S. Ct. at 1057.)

The decisions rendered after Burnett support the defendant’s position that our “saving” statute is inapplicable. See Davis v. Smith’s Transfer, Inc. (6th Cir. 1988), 841 F.2d 139, 140; Stine v. Kansas City Terminal Ry. Co. (Mo. App. 1978), 564 S.W.2d 619, 621; People of The Living God v. Star Towing Co. (E.D. La. 1968), 289 F. Supp. 635, 639; Izquierdo v. Cities Service Oil Co. (S.D. N.Y. 1965), 244 F. Supp. 758, 760.

Further, the plaintiff’s reliance on Wilson is misplaced. Wilson is distinguishable for the reason that the Civil Rights Act, unlike the Jones Act and the FELA, does not contain a limitations provision. (Wilson, 471 U.S. at 266, 85 L. Ed. 2d at 260, 105 S. Ct. at 1942.) When Congress has not established a time limitation for a Federal cause of action, the settled practice has been to adopt a local time limitation if it is not inconsistent with Federal law or policy. (Wilson, 471 U.S. at 266-67, 85 L. Ed. 2d at 260, 105 S. Ct. at 1942. See also DelCostello v. International Brotherhood of Teamsters (1983), 462 U.S. 151, 158-59, 76 L. Ed. 2d 476, 485, 103 S. Ct. 2281, 2287-88.) Here, however, Congress has spoken. Accordingly, we hold that section 13 — 217 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 217) is inapplicable in Jones Act cases under the rule of Burnett v. New York Central R.R. Co. (1965), 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050.

Judgment affirmed.

WHITE and FREEMAN, JJ., concur.


text:
    ANTHONY ALFIERI, Plaintiff-Appellant, v. CSX CORPORATION et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-89-1749
    Opinion filed July 18, 1990.

      Crystal & Heytow, of Chicago, for appellant.
    Gorham, Metge, Bowman & Hourigan, of Chicago, for appellees.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Pursuant to the Railway Labor Act (RLA) (45 U.S.C. §§151 to 163 (1982)) and a collective bargaining agreement, plaintiff Anthony Alfieri arbitrated a grievance complaining of his dismissal from employment with a railroad. He appeals from the denial of his section 2 — 1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) which sought to vacate the dismissal of his retaliatory discharge complaint. The issues on appeal are (1) whether the holding in Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877, that the Labor-Management Relations Act of 1947 (LMRA) (29 U.S.C. §§141 to 197 (1988)) did not preempt a tort claim if it did not require interpretation of the collective bargaining agreement applies to RLA preemption analysis; and (2) whether plaintiff’s action was barred because an arbitrator reinstated him to his employment.

According to a written decision by a referee of the National Adjustment Review Board (the Adjustment Board), plaintiff’s union claimed that there was insufficient evidence that plaintiff was dismissed because of insubordination, that plaintiff was dismissed because of harassment, that plaintiff’s employer, Chesapeake & Ohio Railway Company, violated a rule requiring charges to be sufficiently stated, and that plaintiff had been denied due process. The referee found that plaintiff had unjustifiably failed to perform his duties, that dismissal was an unreasonably severe punishment for insubordinate conduct, and that plaintiff should be reinstated without back pay. A transcript of the hearing on plaintiff’s dismissal is not in the record.

Plaintiff alleged in his circuit court complaint, filed after the referee’s decision, that he reported theft by other employees for which he was discharged in retaliation by defendants CSX Corporation, Baltimore & Ohio Railroad Company, Baltimore & Ohio Chicago Terminal Railroad Company, and Chesapeake & Ohio Railway Company. Plaintiff also alleged that the individual defendants whom he accused of theft, Ronald L. Hildebrand and Joseph P. McMahon, tortiously interfered with his existing, and future expectation of a continued, business relationship with the railroad defendants.

Defendants moved to dismiss the complaint pursuant to sections 2 — 619(1) and (9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 619(1), (9)) on the basis that plaintiff’s claim for retaliatory discharge was in the exclusive jurisdiction of the Adjustment Board to which he had submitted his grievance. Defendants also argued that the RLA preempted the cause of action. Relying upon Lingle v. Norge Division of Magic Chef, Inc. (7th Cir. 1987), 823 F.2d 1031, the trial court granted the motion to dismiss on the basis that the RLA preempted plaintiff’s action, and plaintiff’s complaint was dismissed with prejudice. An appeal from Lingle to the United States Supreme Court was pending at the time of the ruling.

About nine months later, plaintiff filed a petition for relief from the dismissal pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) in which he argued that after the dismissal, the United States Supreme Court reversed Lingle and held that a State-law tort claim for retaliatory discharge was not preempted by the LMRA if resolution of plaintiff’s claim did not turn on the meaning of terms of the collective bargaining agreement. Plaintiff argued that Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 530 N.E.2d 431, interpreted Lingle as holding that an employee covered by a collective bargaining agreement which provided a contractual remedy for discharge without just cause could nevertheless enforce his State-law retaliatory discharge action. Plaintiff argued that there was no difference between the LMRA and the RLA that prevented the Lingle test from being applied to the RLA and that his claim satisfied the test because it was not dependent on the interpretation of any of the terms of the collective bargaining agreement.

Supporting plaintiff’s petition was an affidavit in which he swore that he was precluded from introducing at the hearing before the Adjustment Board any evidence “relating to the issues presented in the subject cause of action.”

At the hearing on plaintiff’s petition, the trial court stated that its original ruling was incorrect because of Lingle’s reversal. But the trial court denied plaintiff’s petition on the new bases that plaintiff’s discharge amounted to a suspension because he was reinstated to his job and the issue of back pay had already been litigated.

Plaintiff argues on appeal that his cause of action for retaliatory discharge was not precluded by the arbitration of his grievance. Although the trial court did not deny plaintiff’s petition because of preemption, and although it found its previous ruling on preemption in error, defendants offer as an alternative basis for affirmance that plaintiff’s complaint was preempted by the RLA. Defendants argue that they may offer any basis upon which to affirm the result regardless of the trial court’s reasoning. Plaintiff counters that because defendants did not cross-appeal from the trial court’s specific finding unfavorable to them that preemption did not apply, the issue of preemption is not properly before the reviewing court, and plaintiff cites Cleys v. Village of Palatine (1980), 89 Ill. App. 3d 630, 636, 411 N.E.2d 1161, and Village of Arlington Heights v. National Bank (1977), 53 Ill. App. 3d 917, 920, 369 N.E.2d 502.

The trial court did not make a specific finding from which appellee should have appealed, but only indicated that its prior ruling that plaintiff’s claim was preempted was incorrect. The basis for the court’s ruling denying the petition was that the plaintiff’s discharge and claim for back wages had already been litigated. The general rule permitting a judgment to be sustained upon any ground warranted regardless of whether it was relied on by the trial court is applicable here. Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9.

We will first address the preemption issue. The RLA provides in part:

“The purposes of *** [the RLA] are: (1) To avoid any interruption to commerce or to the operation of any carrier ***; (4) to provide for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; [and] (5) to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.” 45 U.S.C. §151A (1982).
“(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, *** shall be handled in the usual manner *** but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board.” (Emphasis added.) (45 U.S.C. §153 First (i) (1982).)

Section 301(a) of the LMRA provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29 U.S.C. § 185(a) (1988).

Under the RLA, “minor disputes” is the description given to “controversies over the meaning of an existing collective bargaining agreement in a particular fact situation, generally involving only one employee,” while “major disputes” are those which result when there is “disagreement in the bargaining process for a new contract.” (Brotherhood of R.R. Trainmen v. Chicago River & Indiana R.R. Co. (1956), 353 U.S. 30, 33, 1 L. Ed. 2d 622, 625, 77 S. Ct. 635, 637.) Major and minor do not necessarily refer to significant and insignificant issues. (International Brotherhood of Teamsters v. Southwest Airlines Co. (5th Cir. 1989), 875 F.2d 1129, 1133.) Major disputes that are not settled “in conference” are first mediated before the National Mediation Board and then may be arbitrated. (Elgin, Joliet & Eastern Ry. Co. v. Burley (1945), 325 U.S. 711, 725, 89 L. Ed. 1886, 1895, 65 S. Ct. 1282, 1290; 45 U.S.C. §155 First (1982).) Minor disputes are decided by the Adjustment Board once negotiation fails. (Elgin, 325 U.S. at 726-27, 89 L. Ed. at 1896, 65 S. Ct. at 1291; 45 U.S.C. §153 First (i) (1982).) This grievance procedure for minor disputes is mandatory and exclusive. Brotherhood of Locomotive Engineers v. Louisville & Nashville R.R. Co. (1963), 373 U.S. 33, 38, 10 L. Ed. 2d 172, 176, 83 S. Ct. 1059,1062.

It has been held that contract claims for wrongful discharge are subject to the RLA requirement that disputes be submitted to the Board. In Andrews v. Louisville & Nashville R.R. Co. (1972), 406 U.S. 320, 32 L. Ed. 2d 95, 92 S. Ct. 1562, plaintiff alleged that following an accident, he had fully recovered and was physically able to resume his work for the respondent, but that respondent had refused to allow him to return to work and that respondent’s actions amounted to a wrongful discharge. The court stated:

“Here it is conceded by all that the only source of petitioner’s right not to be discharged, and therefore to treat an alleged discharge as a ’wrongful’ one that entitles him to damages, is the collective-bargaining agreement between the employer and the union. *** His claim is therefore subject to the Act’s requirement that it be submitted to the Board for adjustment.” (Andrews, 406 U.S. at 324, 32 L. Ed. 2d at 99, 92 S. Ct. at 1565.)

Jackson v. Consolidated Rail Corp. (7th Cir. 1983), 717 F.2d 1045, 1049, 1054, characterized retaliatory discharge as merely one type of wrongful discharge and held that plaintiff’s right not to be discharged at the will of his employer grew out of the collective bargaining agreement so that an action for retaliatory discharge was preempted under the RLA.

In Koehler v. Illinois Central Gulf R.R. Co. (1985), 109 Ill. 2d 473, 488 N.E.2d 542, upon which defendants rely, plaintiff suffered an injury and was later certified as fit to return to work. Plaintiff filed suit to recover for his injury pursuant to the act popularly known as the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 to 60 (1982)). Seven years later, plaintiff was permanently disqualified from employment because of alleged degenerative changes in his right knee. Plaintiff alleged in his second FELA complaint that his permanent disqualification was in retaliation for having sued defendant under FELA. A pending grievance was resolved by the National Railroad Adjustment Board, which ordered that plaintiff be reinstated with retroactive seniority. The following issue was submitted for review in Koehler:

“Whether a railroad employee covered under the provisions of the Railroad [sic] Labor Act, 45 U.S.C. section 151 et seq. may bring an action in state court against his employer for wrongful discharge without first exhausting his administrative remedies available under the Railroad [sic] Labor Act.” Koehler, 109 Ill. 2d at 475.

Other jurisdictions have found preemption of State-law tort claims by the RLA. See, e.g., Gonzalez v. Northwest Airlines, Inc. (1985), 201 N.J. Super. 422, 427, 493 A.2d 547, 550 (wrongful discharge is a minor dispute subject to RLA arbitration); Gray v. Chessie System (D. Md. 1984), 588 F. Supp. 1334, 1337 (intentional interference with contractual relations claim is preempted under the RLA where the gravamen of the complaint was a wrongful discharge, which was a minor dispute); Salcedo v. Norfolk & Western Ry. Co. (E.D. Mich. 1982), 572 F. Supp. 286, 288 (claims for intentional infliction of emotional distress and intentional interference with contractual relations are preempted by the RLA where plaintiff was only attempting to recast his wrongful discharge claim as a tort claim); Magnuson v. Burlington Northern, Inc. (9th Cir. 1978), 576 F.2d 1367, 1368-70 (claims of intentional infliction of emotional distress based on conspiracy are preempted under RLA where the basic injury was wrongful discharge, which was a minor dispute).

The court held that the RLA preempts a State-law tort action alleging retaliatory discharge for having filed suit under FELA where it is brought by an employee covered by the RLA. (Koehler, 109 Ill. 2d at 479.) The court also stated that a State-law action for retaliatory discharge would “ ‘threaten undue interference with the federal regulatory scheme.’ ” (Koehler, 109 Ill. 2d at 479, quoting Farmer v. United, Brotherhood of Carpenters & Joiners of America (1977), 430 U.S. 290, 302, 51 L. Ed. 2d 338, 351, 97 S. Ct. 1056, 1064.) The court’s broad statement that “employment-based disputes” were to be resolved exclusively pursuant to the RLA indicated that all such disputes were covered whether or not they involved interpretation of collective bargaining agreements. Koehler, 109 Ill. 2d at 480.

Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 406-10, 100 L. Ed. 2d 410, 419-21, 108 S. Ct. 1880, 1881-83, held that an employee’s State-law retaliatory discharge claim was not preempted by Federal law because it did not involve interpretation of the collective bargaining agreement, that LMRA preemption was to ensure only that Federal law would be the basis for interpreting collective bargaining agreements, and that State-law substantive rights that did not depend upon such interpretation were unaffected. Even if the facts addressed in arbitration pursuant to a collective bargaining agreement were the same as would be addressed in a State-law cause of action, a cause of action that could be resolved without interpreting the collective bargaining agreement is independent for LMRA preemption purposes. Lingle, 486 U.S. at 409-10, 100 L. Ed. 2d at 421,108 S. Ct. at 1883.

Plaintiff argues that Lingle applied to the RLA so that Koehler is no longer good precedent. Defendants disagree on the basis that Lingle’s holding was restricted to the LMRA. Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 426, 530 N.E.2d 431, which plaintiff cites in support of his argument that Lingle redefined the doctrine .of preemption, held that section 301 of the LMRA did not preempt claims that were independent of the collective bargaining agreement. In Ryherd the appellant suffered a work-related injury and filed a workers’ compensation claim. She took a medical leave of absence and was later released to go back to work. Soon thereafter she was discharged. The appellant, through her union, filed a grievance. The arbitrator concluded that the appellant was discharged because of her absenteeism record. The appellant thereafter filed a State-law tort claim for retaliatory discharge alleging she was terminated for filing a workers’ compensation claim.

In Ryherd, the supreme court noted: even where the employee claiming retaliatory discharge is covered by a collective-bargaining agreement, and even where the agreement both forbids discharges absent ‘just cause’ and provides for arbitration. (Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1,10.)” (Ryherd, 124 Ill. 2d at 423-24.)

“In the relatively short time since the appellate court rendered its decision, much water has passed under the bridge. Since that decision, our court has held that claims for retaliatory discharge are not generally preempted by Federal law,

Regarding LMRA section 301 preemption, Ryherd stated:

“The right to recover for retaliatory discharge, however, is equally available to employees covered by a collective-bargaining agreement (Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, cert. denied (1985), 474 U.S. 909, 88 L. Ed. 2d 243, 106 S. Ct. 278) and to employees at will (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134). The right is derived from Illinois Public policy. It cannot be negotiated or bargained away. (See Gonzalez, 115 Ill. 2d at 12.) Moreover, the specific form of the retaliatory discharge right asserted here flows directly from our Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.4(h)), and not from anything in a collective-bargaining agreement.” Ryherd, 124 Ill. 2d at 426-27.

Ryherd also noted that a State court judge looks at the facts differently than an arbitrator:

“It is true that a State court judge and an arbitrator would have to answer a similar factual question: Why did the employer discharge the employee? But the legal questions are entirely different. Once the employer’s motive has been determined, the State court judge looks to Illinois public policy to determine whether the discharge was tortious, while the arbitrator looks to the contract and the ‘law of the shop’ to determine whether the motive constitutes ‘just cause’. These two different types of inquiries cannot be equated.” (Emphasis in original.) Ryherd, 124 Ill. 2d at 428.

An argument that Koehler needed to be reexamined in light of Lingle was recently rejected in Gendron v. Chicago & North Western Transportation Co. (1989), 190 Ill. App. 3d 301, 304, 306, 309, 546 N.E.2d 721, which held that claims of fraudulent conveyance and civil conspiracy were preempted by the RLA. Nevertheless, the court adopted the reasoning used in Lingle that if interpretation of the collective bargaining agreement was required, the fraudulent conveyance claim would be preempted by the RLA. (Gendron, 190 Ill. App. 3d at 305.) The dissenting opinion persuasively argued that Koehler did not require that all State-tort claims be preempted by the RLA because the complaint in Koehler stemmed from a grievance. Gen dron, 190 Ill. App. 3d at 313-14. (O’Connor, J., dissenting).

The majority of cases from other jurisdictions have applied the Lingle analysis to the RLA preemption issue. The Sixth Circuit in Beard v. Carrollton R.R. (6th Cir. 1989), 893 F.2d 117, 122, used a test similar to Lingle to determine whether a tort claim was preempted by the RLA, i.e., whether the claim was inextricably intertwined with the grievance machinery of the collective bargaining agreement and the RLA. The court stated that the standards under the RLA and LMRA might not be identical, but that the Lingle approach was instructive nevertheless and was consistent with the standards that other circuits had applied in railroad cases. Beard, 893 F.2d at 122. See also McCall v. Chesapeake & Ohio Ry. Co. (6th Cir. 1988), 844 F.2d 294, 303 (a State civil rights statute was preempted by the RLA because the action necessarily required an interpretation of the collective bargaining agreement).

In Edelman v. Western Airlines, Inc. (9th Cir. 1989), 892 F. 2d 839, 844, Lingle was cited for the statement that a claim of breach of a collective bargaining agreement was preempted under the RLA, and the court also used the inextricably intertwined test. In Roane v. Comair, Inc. (E.D. Ky. 1989), 708 F. Supp. 802, Lingle was cited in support of the court’s determination that a State-law claim necessarily involved the construction of the collective bargaining agreement so that the claims were preempted by the RLA.

In Walker v. Consolidated Rail Corp. (1989), 178 Mich. App. 451, 457, 444 N.W.2d 199, 200-01, the court used Lingle in support for its determination that a discrimination claim was not preempted by the RLA where the discrimination statute at issue did not conflict with the RLA and where the claim did not require an interpretation of the collective bargaining agreement. In International Association of Machinists & Aerospace Workers v. Allegis Corp. (1989), 545 N.Y.S.2d 638, 642, 144 N.Y. Misc. 2d 983, 988, Lingle was cited in support of the holding that a fraudulent conveyance claim was not preempted by the RLA where it was unnecessary to interpret any collective bargaining agreement terms.

Only one decision has rejected the application of Lingle to the determination of RLA preemption. (Stevenson v. Forte (M.D. Tenn. March 8, 1989), No. 3-88-0046, 1989 U.S. Dist. LEXIS 7034.) Instead, the court used the test whether the claim was founded upon the employment relation.

The RLA provides for the exclusive jurisdiction of the Adjustment Board over grievances and over disputes growing out of interpretation of collective bargaining agreements. (45 U.S.C. §153 First (i) (1982).) Congress did not intend to make a grievance a separate basis for arbitration from disputes over the interpretation or application of the collective bargaining agreement contract; a grievance is a claim of violation of the collective bargaining agreement. (Lancaster v. Norfolk & Western Ry. Co. (7th Cir. 1985), 773 F.2d 807, 814.) The Lingle test under the LMRA whether claims require interpretation of a collective bargaining agreement is already contained in the RLA.

Plaintiff’s retaliatory discharge claim does not grow out of interpretation of the collective bargaining agreement because the terms of his employment are not at issue. In an action for retaliatory discharge, the only issues are why the employee was fired and whether the reason was against public policy. (See Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 134, 421 N.E.2d 876.) In an action for tortious interference with a business relationship, plaintiff must allege the existence of a valid business relationship or expectancy, defendant’s knowledge of the relationship or expectancy, an intentional interference inducing or causing a breach or termination of the relationship or expectancy, and resulting damage. (Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 895, 531 N.E.2d 941.) On this record that does not include the collective bargaining agreement which presumably governed the terms of plaintiff’s employment, it cannot be determined whether plaintiff’s interference with business relationship count will necessarily require interpretation of the collective bargaining agreement.

We hold that the dismissal cannot be upheld on the basis that the complaint was preempted by the RLA. Our holding does not prevent the complaint from being dismissed at a later time if it becomes apparent that the complaint grows out of the interpretation of the collective bargaining agreement.

Plaintiff argues that the trial court erred in dismissing his complaint because he was not precluded from pursuing his cause of action for retaliatory discharge after he arbitrated his grievance. Although the arbitrator had already ruled in favor of plaintiff, Lingle reversed the dismissal of plaintiff’s State-law complaint enabling him to also proceed with his State-law remedies, but the Court did not specifically address the issue whether the cause of action was precluded by the prior arbitration. (Lingle, 486 U.S. at 402, 413, 100 L.Ed. 2d at 416, 423-24, 108 S. Ct. at 1879, 1885.) Ryherd, on the other hand, expressly held that an employee who arbitrated his discharge claim was not thereby precluded from filing a cause of action for retaliatory discharge because an LMRA grievance and a retaliatory discharge claim were different claims. (Ryherd, 124 Ill. 2d at 432, 434.) Similarly, plaintiff’s grievance and State-tort law allegations are separate claims so that plaintiff’s lawsuit was not barred by the previous arbitration.

Defendants argue for the first time on appeal that plaintiff improperly used a section 2 — 1401 petition to obtain relief from the dismissal. The issue is therefore waived. See Harbor Insurance Co. v. Arthur Andersen & Co. (1986), 149 Ill. App. 3d 235, 240, 500 N.E.2d 707.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

FREEMAN and WHITE, JJ., concur.


author: JUSTICE WHITE

text:
    BELL FUELS, INC., Plaintiff-Appellant, v. GEORGE M. BUTKOVICH et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-89-2288
    Opinion filed July 18, 1990.

      Paul F. Conarty, of Glen Ellyn, for appellant.
    Goldstine & Broida, Ltd., of Summit (Ronald J. Broida and David G. Pribyl, of counsel), for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff Bell Fuels, Incorporated, appeals from an order of the circuit court of Cook County denying plaintiff’s motion for a preliminary injunction. Plaintiff sought to enjoin defendants George and Yvonne Butkovich, alleged to be the operators of a gasoline station, from using underground gasoline storage tanks allegedly owned by plaintiff. Plaintiff contended that pursuant to a State statute it would be liable for damages arising from any environmental damage caused by the use of these tanks. The circuit court denied plaintiff’s motion, apparently because of the speculative nature of the possible injuries. We affirm.

This controversy originated with a complaint filed in chancery by plaintiff for unjust enrichment and an equitable lien, in which the following allegations were made. Defendants own a parcel of property located at the northeast corner of 47th Street and Plainfield Road in Brookfield, Illinois. Defendants leased a portion of this property to CFM Central, Incorporated (Central), for the operation of a convenience store and a gasoline station. With the knowledge and consent of defendants, Central and plaintiff entered into a written contract for the installation of fuel dispensing equipment, including gasoline storage tanks, on the premises. After plaintiff had begun to install this equipment, Central made a bulk sale of almost all of its assets to C.F.M. of Illinois, Incorporated (CFM). At the direction of CFM, and with defendants’ consent, plaintiff completed installation of the equipment. All of this equipment was owned by plaintiff. CFM had represented that it would assume Central’s contractual obligations to plaintiff and the defendants. In August 1988, CFM abandoned the premises without the knowledge or consent of plaintiff. On information and belief, plaintiff further alleged that defendants had subsequently leased the premises to an unknown lessee who was currently operating a convenience store on the site. Plaintiff alleged that the equipment it had installed constituted valuable improvements to the premises and that if defendants were permitted to retain possession and use of the improvements without paying plaintiff for them, this would unjustly enrich the defendants. Plaintiff sought to have the court find a contract implied in law between plaintiff and defendants whereby defendants would be obligated to pay plaintiff $85,000 as the reasonable value of the improvements. Plaintiff also sought imposition of an equitable lien on the property to secure payment of this amount.

In a subsequent motion for preliminary injunction plaintiff further alleged that after it filed its complaint, defendants installed gasoline pumps on the premises and connected them to plaintiff’s underground storage tanks and other equipment. Defendants also filled those tanks with gasoline and began selling gasoline from the premises. All of these actions by defendants were taken without plaintiff’s consent. Plaintiff noted that by statute in Illinois the owner of the underground tanks and other equipment would be liable for all costs and expenses incurred by the State of Illinois in remedying any environmental damage resulting from the use of this equipment. (Ill. Rev. Stat. 1987, ch. lll1^, par. 1022.18(a).) Plaintiff alleged that unless defendants were enjoined from using these tanks and other equipment during the pendency of the litigation, plaintiff would be continuously exposed to liability “on account of Defendants’ acts or omissions” without any ability to control the defendants’ operation of that equipment. For these reasons plaintiff sought an order enjoining defendants and all persons acting in concert with them from using or operating the equipment installed by plaintiff during the pendency of the litigation.

Defendants moved to strike and dismiss plaintiff’s complaint and also moved to strike plaintiff’s motion for preliminary injunction. Defendants asserted, inter alia, that plaintiff’s request for a preliminary injunction was based on mere speculation concerning future environmental damage arising out of the operation of the gasoline dispensing equipment. Following oral argument on these motions, the circuit court denied plaintiff’s motion for a preliminary injunction, denied defendants’ motion to strike the complaint, and transferred the cause to the law division. Plaintiff has brought this appeal solely from that portion of the circuit court’s order denying plaintiff’s motion for a preliminary injunction. Accordingly, we do not address the merits of the circuit court’s transfer of the underlying complaint for unjust enrichment to the law division.

Injunctive relief should be granted sparingly, with judicial restraint, and only in a clear and plain case. (In re Marriage of Schwartz (1985), 131 Ill. App. 3d 351, 475 N.E.2d 1077.) Moreover, equitable relief will not be granted where only a speculative possibility of injury is advanced and where injury is contingent upon uncertainties. (Smith Oil Corp. v. Viking Chemical Co. (1984), 127 Ill. App. 3d 423, 468 N.E.2d 797; Mucklow v. John Marshall Law School (1988), 176 Ill. App. 3d 886, 531 N.E.2d 941.) Here the plaintiff’s request for a preliminary injunction was premised upon speculation. Without any supporting factual allegation, plaintiff’s motion implied that defendants (or unnamed persons acting “in concert” with defendants) would operate their gasoline station in such a manner as to create unspecified environmental damage. As defendants noted in the trial court, plaintiff never alleged that defendants had improperly installed or operated this equipment, or had caused any environmental damage. Indeed, the plaintiff does not even directly assert that environmental damage is likely to occur in the future; this allegation, bare of any factual support, must be inferred from plaintiff’s motion. For these reasons we find no abuse of discretion in the circuit court’s denial of plaintiff’s motion for a preliminary injunction and therefore we affirm that order.

The judgment of the circuit court denying plaintiff’s motion for a preliminary injunction is affirmed, and the cause is remanded for further proceedings.

Affirmed and remanded.

RIZZI and FREEMAN, JJ., concur.