Liddell v. Hanover Insurance Company

289 So. 2d 299
CourtLouisiana Court of Appeal
DecidedDecember 17, 1973
Docket9658
StatusPublished
Cited by6 cases

This text of 289 So. 2d 299 (Liddell v. Hanover Insurance Company) 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
Liddell v. Hanover Insurance Company, 289 So. 2d 299 (La. Ct. App. 1973).

Opinion

289 So.2d 299 (1973)

William W. LIDDELL, Jr., Individually and as Administrator of the Estate of his son, Stephen D. Liddell
v.
HANOVER INSURANCE COMPANY et al.

No. 9658.

Court of Appeal of Louisiana, First Circuit.

December 17, 1973.

Jacob D. Landry, New Iberia, for appellant.

W. Gerald Gaudet, Lafayette, for appellee Kellwood Co.

Robert S. Robertson, Morgan City, for appellees Henry Harrington and others.

Before LOTTINGER, BLANCHE and CRAIN, JJ.

LOTTINGER, Judge.

Appellant, William W. Liddell, sued several defendants including Kellwood Company, appellee, as the manufacturer of a tent sold by Sears, Roebuck & Co. to Liddell. Liddell alleged that as a result of Kellwood's negligence in the manufacture of the tent, Stephen Liddell, William Liddell's son, sustained severe injuries when the tent was consumed in flames while Stephen Liddell was sleeping therein. Kellwood filed a declinatory exception of lack *300 of jurisdiction over the person of the defendant urging that it is a nonresident defendant and is not subject to suit in Louisiana. The Trial Court sustained Kellwood's exception and dismissed Kellwood on April 12, 1973. It is from this judgment that Liddell appeals.

It is admitted that the tent in question was purchased by Liddell from Sears. It is stipulated that Kellwood manufactures numerous products, sells them to Sears and that Sears resells at its Louisiana outlets and its outlets in other states. For purposes of this exception, it is conceded that Kellwood was the manufacturer of the tent in question. The tent in question was purchased by appellant from Sears at a store located in Oklahoma and was brought to Louisiana by appellant when he and his family moved from Oklahoma to Louisiana.

It is also important to note that when Kellwood and Sears began doing business, Kellwood shipped all of its products to the Sears terminal in Chicago, Illinois, and that, thereafter, Sears shipped the products to whatever store it desired. A change took place and instead of Kellwood shipping its products to Sears in Chicago, Sears commenced picking up the goods from Kellwood's manufacturing plant and transporting them to Chicago, from where Sears shipped the products to the stores that were to receive them. Kellwood and Sears admitted that it is possible that in exceptional circumstances Kellwood would ship directly to Sears store, but whether this was ever done or how often or few times it was done in Louisiana was not brought out. Kellwood does not advertise in Louisiana.

In addition, we quote one of the stipulations of the parties:

"It is stipulated by and between counsel for plaintiffs and counsel for defendants that the gross sales of Kellwood Company during the year, 1970, amounted to 266 million dollars ($266,000,000.00); that eighty percent of all said sales were made to Sears Roebuck and Company; and that a substantial amount of sales, revenuewise, was made by Kellwood Company to Sears, Roebuck & Company, which items were re-sold in Louisiana, said situation existing during all of the years which are pertinent to the exception to jurisdiction filed by Kellwood, including from 1960 to date." (Emphasis added)

With the above facts and stipulations in mind we can now explore the question of jurisdiction in this matter. Plaintiff-appellant claims Louisiana has jurisdiction over Kellwood by reason of R.S. 13:3201(d), which we quote:

"A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident's....
(d) 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 source of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state; ..."

We now wish to quote a portion of the Written Reasons for Judgment of the Trial Court:

"I have carefully read and considered each of the cases cited in the excellent briefs submitted by able counsel for both parties as well as the provisions of the Louisiana Long Arm Statute (LSARS 13:3201 et seq) and have concluded that under the circumstances here presented the defendant, Kellwood, has not established such minimum contacts with the State of Louisiana as would justify an assertion of jurisdiction over it by the Courts of Louisiana. In my opinion, a mere showing that a manufacturer's products reach Louisiana in substantial quantities, without more, is not and *301 should not constitute a sufficient contact between the nonresident manufacturer and the State so as to subject the former to the jurisdiction of the latter. In my judgment to hold otherwise offends traditional notions of fair play and substantial justice and does violence to the doctrine established by the United States Supreme Court in the cases of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; and, McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. As stated in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283:
"`.... Those restrictions (on personal jurisdiction of State Courts) are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the minimal contacts with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. v. State of Washington, 326 U.S. 310, 319; 66 S.Ct. 154, 90 L.Ed. 95.'"

Plaintiff-appellant relies on Boykin v. Lindenkranar, 252 So.2d 467 (4th Cir. 1971), rehearing denied. In Boykin, a large industrial crane, manufactured by a Swedish corporation, collapsed and killed plaintiff's husband on a New Orleans construction project. The crane was sold in Sweden to a New York corporation that marketed the product and its parts in this country and in Louisiana. The evidence showed that at least nine other construction cranes of the same manufacturer, each costing $50,000, were in use here. The Court of Appeal maintained jurisdiction over the Swedish Company, stating at p. 470:

"It appears to us that a manufacturer, whose products reach Louisiana in quantity that may reasonably be said to be substantial, is somehow successfully soliciting and doing business in Louisiana, for purposes of determining whether under R.S. 13:3201(d) he subjects himself to Louisiana's jurisdiction over a tort claim arising out of allegedly defective manufacture of his product outside of Louisiana.
* * * * * *
"In our opinion the intended breadth of R.S. 13:3201(d), for purposes of conferring jurisdiction in manufacturer's products liability cases, is not limited by traditional notions of contract privity; nor, for such purposes, is `independent contractor' as opposed to `agent' a defense to jurisdiction.

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Bluebook (online)
289 So. 2d 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liddell-v-hanover-insurance-company-lactapp-1973.