Marchand v. Asbestos

52 So. 3d 196, 2010 La.App. 4 Cir. 0476, 2010 La. App. LEXIS 1574, 2010 WL 4542383
Louisiana Court of Appeal·Decided November 10, 2010·No. 2010-CA-0476, 2010-CA-0543, 2010-CA-0766·Published·Cited by 11 cases

Opinions

MICHAEL E. KIRBY, Judge.

Lin this consolidated appeal, plaintiffs in three cases appeal the granting of exceptions of lack of personal jurisdiction filed by defendant, Rapid-American Corporation. The rulings at issue were rendered by three trial court judges. This Court granted the unopposed motion of Rapid-American Corporation to consolidate these cases for purposes of this appeal as all three cases involve the same issue.1

Plaintiffs filed suit against numerous defendants, including Rapid-American, alleging injuries caused by exposure to asbestos-containing products. In their petitions, plaintiffs alleged that Rapid-American is the successor by merger to the Philip Carey Manufacturing Company, which manufactured and sold some of the asbestos-containing products leading to the damages upon which these lawsuits are based. Plaintiffs named Rapid-American as a defendant pursuant to the Louisiana Long-Arm Statute, La. R.S. 13:3201, et seq., which allows a Louisiana court to exercise personal jurisdiction over a nonresident defendant for “[m]an-ufacturing of a product or component thereof which caused damage or injury in this state, if at Rthe time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.” La. R.S. 13:3201(A)(8).

Rapid-American filed declinatory exceptions of lack of personal jurisdiction in all three cases herein, relying on this Court’s previous decision in Boatwright v. Metropolitan Life Insurance Co., 95-1822 (La.App. 4 Cir. 9/28/95), 661 So.2d 169. In the [198]*198Boatwright case, as in the instant cases, Rapid-American argued that it is a Delaware corporation that has never been engaged in any aspect of the asbestos business, and has never done business of any kind in Louisiana. Rapid-American further argued that its connection to the Philip Carey Manufacturing Company is so tenuous and remote that it cannot support personal jurisdiction over Rapid-American in Louisiana courts.

In the Boatwright case, this Court set forth the following corporate history of Rapid-American and Philip Carey Manufacturing Company as outlined by Rapid-American in its exception:

Old Carey [Philip Carey Manufacturing Company] was an Ohio corporation formed in 1888 that manufactured asbestos products. In 1966 Glen Alden Company, a Delaware Corporation that did not manufacture asbestos, formed P.C. Company, Inc. as a vehicle to carry on the business of Old Carey as soon as Glen Alden’s acquisition of Old Carey was completed. On June 1, 1967, Old Carey merged into Glen Alden, and Glen Alden assumed all of Old Carey’s liabilities through the merger. Glen Alden then immediately transferred Old Carey’s business to P.C. Company, a subsidiary which was later renamed Philip Carey Corporation (New|sCarey). New Carey then assumed Old Carey’s liabilities to which Glen Alden had become subject as a result of the merger and agreed to hold Glen Alden harmless and to indemnify it for such liabilities.
In April 1970, New Carey merged with Briggs Manufacturing Company; the successor corporation was named Panacon Corporation. Glen Alden owned the majority of Panacon’s publicly traded shares. In April 1972, Glen Alden sold its controlling interest in Pa-nacon to Celotex Corporation; Panacon was a subsidiary of Celotex until it was merged into Celotex in June of 1972. As part of the merger, Celotex acquired all of Panacon’s liabilities.
In October/November 1972, Rapid American Corporation of Ohio (Rapid Ohio) merged with Glen Alden. The successor corporation was named Rapid American Corporation, and it assumed all debts and liabilities of Glen Alden. In January 1981, Rapid American merged with Kenton Corporation and R-K Holding Corporation to become the present day relator [Rapid-American]. Like the other merger agreements, this one provided for the assumption of liability of the predecessor corporations.

Boatwright v. Metropolitan Life Ins. Co., 95-1822, pp. 2-3, 661 So.2d at 170.

The Boatwright court noted that in order to subject a nonresident defendant to personal jurisdiction, due process requires that the defendant 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. Boatwright v. Metropolitan Life Ins. Co., 95-1822, p. 4, 661 So.2d at 171, citing International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); de Reyes v. Marine Mgt. and Consulting, 586 So.2d 103 (La.1991). This Court further noted that the minimum contacts between the nonresident defendant and the state must be based on some act by the defendant through which he purposefully avails himself of the privilege of conducting activities within the state and thereby Linvokes the benefits and protections of the state’s law. Id., citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). This requirement ensures that the defendant will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, [199]*199by the unilateral activity of another party or a third person. Id., citing de Reyes, 586 So.2d at 106.

In ruling that Louisiana courts did not have personal jurisdiction over Rapid-American, the Boatwright court stated:

Relator could not have foreseen being sued in this state to answer for liabilities of a long nonexistent corporation, the business of which had been taken over by a subsidiary that relator never owned. Additionally, unlike the successor corporation in Cole, relator could not have sued in this state to collect money owed to Old Carey since Old Carey, as well its successor New Carey and Pana-con, were sold before Glen Alden merged with Rapid Ohio, relator’s predecessor corporation. More important, however, is the fact that relator has had no contacts in Louisiana from which it availed itself of the privilege of doing business in this state.
It would be unreasonable to conclude that relator could have expected to be haled into Louisiana’s courts because of the series of mergers and acquisitions outlined above. Although we do not intend to convey a hard and fast rule that a successor corporation can never be subject to Louisiana’s Long Arm Statute because of the contacts of its predecessor, under the facts of the instant case, to do so would violate any notion of fair play and substantial justice.

Boatwright v. Metropolitan Life Ins. Co., 95-1822, p. 8, 661 So.2d at 173.

In the instant cases, Rapid-American argued in its memoranda in support of the exceptions of lack of personal jurisdiction that there has been no material change in Rapid-American’s status since the Boat-wright case was heard, and Rapid-American still does not do business or have any business activities, operations or property in Louisiana. Noting that the Boatwright case is still good |sIaw, Rapid-American argued that its exceptions of lack of personal jurisdiction should be granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Marchand v. Asbestos, 52 So. 3d 196, 2010 La.App. 4 Cir. 0476, 2010 La. App. LEXIS 1574, 2010 WL 4542383 (La. Ct. App. 2010).

52 So. 3d 196 (Marchand v. Asbestos) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Succession of Laurie Maria Brocato .
Louisiana Court of Appeal, 2025
Reeder v. Williams
E.D. Louisiana, 2023
Kaye v. Karp
237 So. 3d 614 (Louisiana Court of Appeal, 2017)
Ohle v. Uhalt
213 So. 3d 1 (Louisiana Court of Appeal, 2017)
Bioclin, BV v. Multigyn USA, LLC
129 So. 3d 633 (Louisiana Court of Appeal, 2013)
Jacobsen v. Asbestos Corp.
119 So. 3d 770 (Louisiana Court of Appeal, 2013)
Bennett v. Porter
58 So. 3d 663 (Louisiana Court of Appeal, 2011)
Marchand v. Asbestos
52 So. 3d 196 (Louisiana Court of Appeal, 2010)