Funai v. Air Center, Inc.

499 So. 2d 669, 1986 La. App. LEXIS 8637
CourtLouisiana Court of Appeal
DecidedDecember 10, 1986
Docket86-45
StatusPublished
Cited by8 cases

This text of 499 So. 2d 669 (Funai v. Air Center, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Funai v. Air Center, Inc., 499 So. 2d 669, 1986 La. App. LEXIS 8637 (La. Ct. App. 1986).

Opinion

499 So.2d 669 (1986)

Marguerite B. FUNAI, et al., Plaintiffs-Appellants,
v.
AIR CENTER, INC., et al., Defendants-Appellees.

No. 86-45.

Court of Appeal of Louisiana, Third Circuit.

December 10, 1986.

*670 Robert S. Cooper, Jr., Baton Rouge, for plaintiffs-appellants.

Thomas, Dunahoe, Edwin Dunahoe, Natchitoches, William A. Porteous, III of Porteous, Hainkel, etc., Christovich and Kearney, R.K. Christovich, New Orleans, F. Drake Lee, Jr., of Cook, Yancey, Shreveport, for defendants-appellees.

Before DOMENGEAUX, FORET and STOKER, JJ.

DOMENGEAUX, Judge.

The above numbered and entitled case together with the case of Winans v. Air Center, Inc., 499 So.2d 674 (La.App. 3rd Cir.1986), are consolidated for appeal. We will consider both appeals herein, but will render a separate opinion in case No. 86-46.

These consolidated actions were brought by the widows and surviving children of Alfred C. "Luke" Funai and L.H. "Buddy" Winans who were killed in an airplane crash on April 27, 1978, in Natchitoches Parish, Louisiana. On April 27, 1979, suits were filed in Oklahoma by the surviving members of each family against various corporations including Air Center, Inc., the defendant in the present case.

The plaintiffs thereafter brought an action in the United States District Court for the Western District of Louisiana against the same defendants with the exception of Air Center. The case was tried and judgment was rendered in favor of all defendants.

The present actions were filed on August 15, 1983, in the Tenth Judicial District Court, Parish of Natchitoches, against several of the same defendants named in both the Oklahoma and federal actions. Pursuant to an Order issued by the United States District Court, the plaintiffs herein filed a motion to dismiss all of the defendants in these cases except Air Center and its liability insurer, Associated Aviation Underwriters (AAU).

Air Center and AAU thereafter filed declinatory exceptions based on improper venue and lack of personal jurisdiction. The *671 exception of improper venue was withdrawn by Air Center prior to judgment on the exceptions. They also filed an exception on the basis of La.C.C.P. Article 532 which allows a court to stay all proceedings where there is another suit first brought in a court of another state on the same cause of action, between the same parties, and having the same object.

The district judge, after a hearing on the aforestated exceptions, sustained the defendants' exception of lack of personal jurisdiction.[1] From this judgment, the plaintiff has appealed.

The issues raised on appeal are:

(1) Whether the trial court erred in failing to find jurisdiction under La.R.S. 13:3201(4), and

(2) Whether, in the event this court finds jurisdiction, these proceedings should be stayed under La.C.C.P. Art. 532 until the actions in Oklahoma reach final judgment.

The plaintiffs contend that the district judge erred in finding that the district court did not have personal jurisdiction over the defendants. The applicable provision of La.R.S. 13:3201, Louisiana's long-arm statute, provides:

"A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
* * * * * *
(4) Causing injury or damage in this state by an offense or quasi-offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state."

It is well-settled that the legislative intent in adopting this statute was to extend personal jurisdiction of Louisiana courts over nonresidents consistent with the due process clause of the Fourteenth Amendment. Clay v. Clay, 389 So.2d 31 (La. 1979); Soileau v. Evangeline Farmer's Co-op, 386 So.2d 179 (La.App. 3rd Cir. 1980). In order to satisfy due process requirements a nonresident must have "certain minimum contacts [with the forum state] ... such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). See also Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Whether or not a particular defendant has sufficient minimum contacts with a state is to be determined from the facts and circumstances of each case. Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, 283 So.2d 687 (La. 1973); Soileau, supra.

At the hearing on the exceptions, the evidence consisted solely of documents filed into evidence by both parties as no witnesses were called to testify. One of the plaintiffs' offerings, Plaintiffs' Request for Admissions, revealed certain undisputed facts, the following of which are pertinent to this discussion:

"(1) That on April 27, 1978, a Jet Commander aircraft model 1121A, S/N, F.A.A. registration number 250UA crashed between Gorum and Flatwoods, Louisiana, in Natchitoches Parish, State of Louisiana (hereinafter referred to as `the aircraft').
(2) That L.H. Winans and Alfred Charles Funai were on board the aircraft at the time of the crash and were killed as a result thereof on April 27, 1978."

In addition, the depositions of Air Center executives B.W. O'Berg and James L. Whaylen, offered by the plaintiffs in evidence, show that Air Center is an Oklahoma corporation which employs no personnel in Louisiana and has no offices located *672 in Louisiana. According to Mr. O'Berg, Air Center does solicit business throughout the United States including Louisiana for the maintenance and modification of aircrafts "... by both telephone, by direct mailing and by being one of the five service centers that maintain this type of aircraft in the United States." Air Center sends a newsletter at least four times a year to previous customers and to all aircraft owners whose names are acquired by Air Center by subscribing to the Insured Aircraft Title Service. The newsletter contains "... a questionnaire and a return-type tear-off tab [which] ... you tear off and mail back postage-free." Mr. O'Berg stated that Air Center also advertises in the national magazines. At the time of the accident, Louisiana Power & Light, Olin-Matheson, and Ford, Bacon and Davis were some of Air Center's customers from Louisiana.

The plaintiffs allege in their petition that because of defendant Air Center's failure to detect fuel leaks in the aircraft and to exercise reasonable care in maintaining and repairing the aircraft, plaintiffs' decedents were killed when the plane they were occupying crashed. The plaintiffs' allegations, coupled with the damages they seek, set forth causes of action under La.C.C. Art. 2315 and makes La.R.S. 13:3201(4) the applicable provision of the long-arm statute in asserting personal jurisdiction over Air Center and its liability insurer.

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