281 Ga. App. 152 635 S.E.2d 411

A06A1109.

FEDERAL INSURANCE COMPANY v. CHICAGO INSURANCE COMPANY.

(635 SE2d 411)

Ellington, Judge.

Federal Insurance Company (“Federal”) appeals from the order of the Superior Court of Fulton County dismissing this case on forum non conveniens grounds pursuant to OCGA§ 9-10-31.1. Because the trial court failed to make the findings of fact required to support its decision, we vacate the dismissal order, reinstate the case below, and remand for further proceedings.

Georgia’s forum non conveniens statute provides, in relevant part:

If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state . . . , the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action----In determining whether to grant a motion to dismiss an action... under the doctrine of forum non conveniens, the court shall give consideration to the following factors:
(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance of unwilling witnesses;
(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;
(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiffs own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
*153(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiffs choice of forum.

OCGA § 9-10-31.1 (a). When a court applies this statute, it must make oral or written findings of fact reflecting an analysis of the “procedural framework” of the statute, specifically considering and weighing each of the seven factors enumerated. Hewett v. Raytheon Aircraft Co., 273 Ga. App. 242, 248-249 (2) (614 SE2d 875) (2005).1 An order dismissing a case under OCGA § 9-10-31.1 is reviewed for an abuse of discretion. Id. at 248 (2).

The record shows that Federal sued Chicago Insurance Company (“Chicago”) in Fulton County seeking contribution and subrogation from Chicago for amounts paid by Federal on behalf of an insured to settle a Mississippi wrongful death action. None of the parties in that underlying, settled wrongful death suit was a Georgia resident. Although Chicago and Federal are authorized to write policies in Georgia and have registered agents for service of process in Georgia,2 neither company is headquartered here. None of the insurance policies in dispute was issued in Georgia. The relevant documents and witnesses are not in Georgia, and some witnesses may be beyond the subpoena power of the court. Litigating in Georgia would be cumbersome and expensive for the parties, requiring travel for depositions outside of Georgia and possibly the retention of local counsel. The trial court concluded the case would be burdensome because it added to the court’s case load, required the court to apply foreign law, and required the court to bear expenses, like the cost of funding a jury.

It appears Federal chose to sue Chicago in Georgia because Georgia’s applicable six-year statute of limitation period had yet to expire.3 Federal waited five years and nine months from the date of *154settlement to file suit. Although Federal admitted it might find another forum to litigate this suit,4 neither it nor Chicago identified an alternative forum in which the suit “would be more properly heard.”

In its dismissal order, the superior court discussed each of the seven enumerated factors in determining that litigation between the parties would be generally inconvenient in Georgia; however, it analyzed those factors in a vacuum, without identifying an existing alternative forum in which the action “would be more properly heard.” Further, the court did not find that dismissing the case would serve “the interest of justice.” Chicago argues that these are not requirements of the forum non conveniens doctrine as codified because they are not included in the seven factors.

The seven factors set forth in OCGA § 9-10-31.1 (a), however, are not the core expression of the forum non conveniens doctrine. Rather, the seven factors are a list of public and private interests the court must consider in determining whether “in the interest of justice” and “for the convenience of the parties and witnesses” a claim or action “would be more properly heard in a forum outside this state.” See OCGA§ 9-10-31.1 (a). It is not the seven enumerated factors, but the first sentence of the statute that expresses the core concepts of the forum non conveniens doctrine.5 This fundamental expression, in conjunction with the seven factors, comprises the larger “procedural framework” of the statutory forum non conveniens doctrine. The seven factors are a means to an end: They serve to guide the court *155toward a reasoned and just finding on whether the case is one which “would be more properly heard in a forum outside the state.”

Decided August 16, 2006.

Owen, Gleaton, Egan, Jones & Sweeney, W. Seaborn Jones, Derrick L. Bingham, for appellant.

Fields, Howell, Athans & McLaughlin, Alissa C. Malone, Gregory L. Mast, for appellee.

It is impossible to determine whether a forum outside the state is more proper when no adequate alternative forum has been identified and compared with the Georgia forum. Dismissing a case on forum non conveniens grounds without making this comparison is both contrary to the statutory mandate and an abuse of discretion. Therefore, we hold that before a court may dismiss a suit under OCGA § 9-10-31.1 (a), it must find on the record that (1) an adequate alternative forum exists, (2) that dismissal serves the interest of justice and the convenience of the parties and witnesses (as guided by a consideration of the seven enumerated factors), and that, therefore, (3) the claim or action is more properly heard in a forum outside the state. Because the court in the instant case failed to make all of these findings, we must vacate the dismissal order, reinstate the case below, and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded with instruction.

Johnson, P. J., and Miller, J., concur.

Federal Insurance v. Chicago Insurance
281 Ga. App. 152 635 S.E.2d 411

Case Details

Name
Federal Insurance v. Chicago Insurance
Decision Date
Aug 16, 2006
Citations

281 Ga. App. 152

635 S.E.2d 411

Jurisdiction
Georgia

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