Summary
In Alliance a product manufactured by a foreign corporation caused an injury in Colorado, and the corporation was held subject to the jurisdiction of Colorado courts.
Summary of this case from Resources Inv. Corp. v. Hughes Tool Co.Opinion
No. 26575
Decided February 18, 1975.
Original proceeding in which foreign corporation requests a writ of prohibition to prevent the district court from subjecting it to in personam jurisdiction pursuant to provision of Colorado long-arm statute providing for jurisdiction when a "tortious act" has been committed in this state. Rule to show cause issued.
Rule Discharged
1. PROCESS — Long-Arm Statute — Negligence — Another Jurisdiction — Injury in Colorado — Tortious Act. Negligence in another jurisdiction which proximately results in injury in Colorado is a tortious act within the meaning of the long-arm statute.
2. Foreign Manufacturer — Stream of Commerce — Foresee — Fair Play — Justice — Due Process. It does not offend traditional notions of fair play and substantial justice and does not deny due process to except a foreign manufacturer — who places his product in the streams of commerce and can foresee that his product will be used in the United States — to defend an action brought to recover for injuries allegedly caused by the alleged defect in that product.
3. Foreign Manufacturer — Foresee — Use — United States — Middlemen — In Personam — Defect in Product. If foreign manufacturer can reasonably foresee that his product will be used in the United States, it does not matter how many middlemen control the product before it reaches the United States for purposes of determining whether in personam jurisdiction may be exercised over the manufacturer for injuries allegedly caused by defects in the product.
4. Foreign Manufacturer — In Personam — Use — Foreseeable. Before a foreign manufacturer can be subjected to in personam jurisdiction in action for injuries allegedly caused by his product, the injury complained of must have resulted from a use intended or foreseeable by the manufacturer.
5. CORPORATIONS — Foreign — In Personam — Plaintiff — Merits — Action — Injuries — Ski Pants — Proof — Not Required. Plaintiff was not required to prove merits of her action for injuries sustained in fall — which occurred while she was skiing and which was allegedly caused by defect in ski pants — — in order to establish initially in personam jurisdiction over foreign corporation which manufactured the pants.
6. Foreign — Ski Pants — Latent Defect — Foreseeable — Sale — United States — In Personam Jurisdiction. In plaintiff's action in Colorado for injuries sustained in fall allegedly caused by latent defect in ski pants, under long-arm statute, Hong Kong corporation — which manufactured the pants plaintiff was wearing at time she fell while skiing in Colorado — was subject to in personam jurisdiction for the injuries sustained in that fall, if corporation could reasonably have foreseen that its pants would be sold as ski apparel in the United States.
7. Judgment — Foreign — Enforceable — Location — Not a Consideration — Determination — In Personam Jurisdiction. Whether any judgment rendered against a foreign corporation would be enforceable in the jurisdiction where the corporation was located was not a consideration in determining whether in personam jurisdiction could be exercised over the corporation.
Original Proceeding
Holland Hart, David G. Palmer, for petitioner.
Snead, Wright and Babbs, E. Alan Hampson, for respondents.
This is an original proceeding in which the petitioner, Alliance Clothing Ltd., requests a writ of prohibition to prevent the Denver District Court from subjecting it to in personam jurisdiction pursuant to the provision of the Colorado long-arm statute providing for jurisdiction when a "tortious act" has been committed in this state. Section 13-1-124(1)(b), C.R.S. 1973.
In a complaint filed in the respondent court, Susan Birnkrant alleged that she fell while skiing at Vail, Colorado and suffered severe and permanent injuries because of latent defects in the parka and pants she was wearing. The fabric used for the exterior of these garments is claimed to have an insufficient coefficient of friction to impede or prevent dangerous slides when a skier has fallen. The defendants are manufacturers, distributors and retailers of the plaintiff's ski apparel.
The defendant-petitioner, Alliance Clothing Ltd., is a Hong Kong corporation and purportedly manufactured the pants worn by the plaintiff. Alliance was served with process at its Hong Kong office pursuant to section 13-1-125, C.R.S. 1973. Alliance contends that the exercise of personal jurisdiction in this case violates its due process rights under the Colorado and United States constitutions because traditional notions of fair play and substantial justice are violated. We disagree and therefore discharge our previously issued rule to show cause.
I.
The complaint in this action, besides alleging that Alliance manufactured the pants worn at the time of the fall, alleges that these pants were sold and distributed in the united States by defendants Archer Enterprises Ltd., a Hong Kong corporation, and H. G. Schwarz Co., a California corporation. The pants were bought by the plaintiff from the defendant Bullrich Corporation, a Colorado corporation doing business as the Christy Sports Shop in Vail, Colorado. The plaintiff alleges in the complaint that Alliance is in the business of design, manufacture and distribution of ski clothing which was placed in the stream of commerce throughout the world, and specifically in the United States and Colorado by all of the defendants.
Alliance contends that Colorado case law construing the long-arm statute requires dismissal of this suit against it. Resolution of this question depends on whether a corporation foreign to the United States (hereinafter called an alien corporation) is subject to the same rules with regard to the exercise of jurisdiction by a Colorado court as is a corporation authorized to do business under the laws of one of the United States other than Colorado (hereinafter called a native corporation).
When examining whether jurisdiction may properly be exercised under section 13-1-124(1)(b), C.R.S. 1973, over alien corporations, we must determine whether subjecting the defendant to the jurisdiction of the Colorado court offends traditional notions of fair play and substantial justice. E.g., International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In both Czarnick v. District Court, 175 Colo. 482, 488 P.2d 562, and Vandermee v. District Court, 164 Colo. 117, 433 P.2d 335, we held that a defendant-manufacturer who places his products in interstate commerce can be called into this state to defend actions for damages caused by defects in those products, without violating the manufacturer's right to due process.
[1] Alliance concedes that negligence in another jurisdiction which proximately results in injury in Colorado is a tortious act within the meaning of the long-arm statute. Indeed, we have so held in Texair Flyers, Inc. v. District Court, 180 Colo. 432, 506 P.2d 367, Czarnick, supra, and Vandermee, supra. Thus, since the plaintiff has alleged negligence in another jurisdiction which resulted in injury in Colorado and also alleged that the defendant placed his product into the stream of commerce, Alliance could clearly be called to defend this action in Colorado if it were a native corporation.
The petitioner contends that Ferrari S.p.A. Sefac v. District Court, 185 Colo. 136, 522 P.2d 105, Granite States Volkswagen, Inc. v. District Court, 177 Colo. 42, 492 P.2d 624, and Safari Outfitters, Inc. v. Superior Court, 167 Colo. 456, 448 P.2d 783, require an opposite conclusion at least with regard to alien corporations. However, in Ferrari we found that a tortious act had not been committed in Colorado and that the defendant Ferrari did not have sufficient contacts with Colorado to constitutionally subject it to personal jurisdiction under the "transaction of any business" portion of our long-arm statute. Section 13-1-124(1)(a), C.R.S. 1973. Similarly, Safari Outfitters was a case under the "transaction of any business" portion of the statute and minimum contacts could not be found. In Granite States Volkswagen the defendant Volkswagen dealer had not availed itself of the channels of interstate commerce. Here, the petitioner has alleged conduct falling under the "tortious act" portion of the long-arm statute, and that the defendant has allegedly availed itself of the channels of commerce. Thus, the cases the petitioner cites are inapposite in determining the jurisdictional question presented.
II.
Since the defendant Alliance could be constitutionally subjected to personal jurisdiction in Colorado if it were a native corporation, we turn to examine the question of whether the result is different in this case because Alliance is an alien corporation.
A number of courts have held that similar state statutes, in cases alleging tortious conduct, subjected alien corporations to personal jurisdiction within the state. See Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir. 1969); Reilly v. P.J. Wolff Sohne, 374 F. Supp. 775 (D.N.J. 1974); Engineered Sports Products v. Brunswick Corp., 362 F. Supp. 722 (D. Utah 1973); Scanlan v. Norma Projektil Fabrik, 345 F. Supp. 292 (D. Mont. 1972); Liberty Mutual Insurance Co. v. American Pecco Corp., 334 F. Supp. 522 (D.D.C. 1971); Blum v. Kawaguchi, Ltd., 331 F. Supp. 216 (D. Neb. 1971); Scafati v. Bayerische Motoren Werke AG, 53 F.R.D. 256 (W.D. Pa. 1971); Benn v. Linden Crane Co., 326 F. Supp. 995 (E.D. Pa. 1971); Shoei Kako Co., Ltd. v. Superior Court, 33 Cal. App. 3d 808, 109 Cal. Rptr. 402 (1973); Regie Nationale des Usines Renault v. Superior Court, 208 Cal.App.2d 702, 25 Cal. Rptr. 530 (1962); Certismo v. Heidelberg Co., 122 N.J. Super. 1, 298 A.2d 298 (1972), aff'd sub nom. Van Eeuwen v. Heidelberg Eastern, Inc., 124 N.J. Super. 251, 306 A.2d 79 (1973); Deutsch v. West Coast Machinery Co., 80 Wash.2d 707, 497 P.2d 1311, cert. denied sub nom.; Kansai Iron Works, Ltd. v. Marubeni-Iida, Inc., 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972); Omstead v. Brader Heaters, Inc., 5 Wash. App. 258, 487 P.2d 234 (1971), aff'd 80 Wash. 2d 720, 497 P.2d 1310 (1972) [opinion of the Court of Appeals adopted as opinion of the Supreme Court]. Contra, Gorso v. Bell Equipment Corpo., 476 F.2d 1216 (3d Cir. 1973); Velandra v. Regie Nationale des Usines Renault, 336 F.2d 292 (6th Cir. 1964). But cf. Moyses v. Spartan Asphalt Paving Co., 383 Mich. 314, 174 N.W.2d 797 (1970).
[2] In all the cases subjecting alien manufacturers to personal jurisdiction, the courts noted that the manufacturer could reasonably foresee that his product would be used in the United States or in the state in question. It does not offend traditional notions of fair play and substantial justice to expect a foreign manufacturer who places his product in the streams of commerce and can foresee that his product will be used in the United States, to defend an action brought to recover for injuries allegedly caused by the product. The language in these cases seems to indicate that due process would be denied the alien manufacturer if he was subjected to jurisdiction merely because a tort was committed in the state. However, if it is also foreseeable to the foreign manufacturer that his product would be used in the United States, then the defendant's due process rights are not violated. See, e.g., Duple, supra and Omstead, supra. This analysis of the problem is reasonable, and we will apply it to the instant case.
[3] Alliance sold to another Hong Kong corporation which distributed the goods for sale in the United States. However, for our purposes, the chain of distribution makes no difference. If the manufacturer can reasonably foresee that his product will be used in the United States, it should not matter how many middlemen control the product before its gets here. Otherwise, alien manufacturers would set up intricate distribution channels merely to avoid the possibility of defending a lawsuit in the United States. Such circuitous distribution chains have not protected alien manufacturers in other jurisdictions. E.g., Scafati, supra and Deutsch, supra.
[4] An additional requirement to be met before subjecting an alien manufacturer to personal jurisdiction was mentioned in Omstead, supra, and is inherent in all these stream of commerce cases. The injury complained of must have resulted from a use intended or foreseeable by the manufacturer. Here, Alliance claims that it had no intention or knowledge that the pants it manufactured were to be sold as "ski pants."
[5] Although Alliance filed affidavits which alleged facts sufficient to relieve it of liability under the rules laid down here, we do not have before us the transcript of the proceedings in the trial court, and we do not know what evidence, if any, was presented by the plaintiff to support the allegations of the complaint. In Texair, supra, however, we held that once the plaintiff has alleged facts sufficient to set forth a prima facie showing of jurisdiction, as the plaintiff has done in this case under the guidelines we have set down here, "the process is not vulnerable to a motion to quash based upon lack of jurisdiction." 506 P.2d at 369. The plaintiff does not have to prove the merits of her action to initially establish in personam jurisdiction. Of course, the question of jurisdiction can be raised later on appeal if Alliance still believes that there is insufficient evidence to support plaintiff's allegations.
[6] We are not unmindful of the additional considerations which some commentators have said are important in suits against alien corporations. See, e.g., von Mehren and Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 74 Harv. L. Rev. 1121 (1966); Comment, Long Arm Statutes — Jurisdiction Over Alien Manufacturers in Product Liability Actions, 18 Wayne L. Rev. 1585 (1972); Comment, The Long-Arm Reaches the International Manufacturer — A Criticism, 8 William L. J. 54 (1972). These considerations are (1) the defendant should not be forced to litigate in this country when the plaintiff is as able to litigate abroad as the defendant, (2) courts should avoid exercising jurisdiction over an alien corporation when to do so would damage the United States' foreign relations, and (3) courts should not render judgments which are unenforceable in the defendant's country. Upon analysis, these concerns do not change our ruling that Alliance may be subject to personal jurisdiction in Colorado if it could reasonably foresee that its pants would be sold as ski apparel in the United States.
First, this is not a case in which the plaintiff would be as able to litigate in a foreign country as the defendant corporation. In this case the plaintiff is an individual and not a corporation with a nationwide or worldwide business operation. Also, the witnesses in this case who would testify as to the cause and extent of the plaintiff's injury are in Colorado and not in some other jurisdiction. Second, we point out that in this case a native corporation which engaged in conduct identical to Alliance's would also be subjected to the personal jurisdiction of a Colorado court.
[7] Finally, we do not feel we should be concerned with whether any judgment rendered against Alliance would be enforceable in Hong Kong. The plaintiff is the best judge of whether to pursue a suit against a foreign corporation. If the judgment is not enforceable in Hong Kong, the plaintiff could find assets of the defendant in other state or nations which would recognize the judgment. We agree with Professor Juenger that determining jurisdiction by deciding if the judgment is enforceable in the foreign country would discriminate against countries with liberal recognition rules and encourage countries to adopt a practice of nonrecognition. See Juenger, Conflict of Laws, 1970 Annual Survey of Michigan Law, 17 Wayne L. Rev. 339, 342 (1971).
We discharge our rule to show cause without prejudice to the defendant to raise the question of jurisdiction on appeal.
MR. JUSTICE ERICKSON dissents.
MR. JUSTICE KELLEY does not participate.