US Fidelity v. Hi-Tower Concrete Pumping

434 So. 2d 506
CourtLouisiana Court of Appeal
DecidedJune 6, 1983
Docket15422-CA
StatusPublished
Cited by5 cases

This text of 434 So. 2d 506 (US Fidelity v. Hi-Tower Concrete Pumping) 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
US Fidelity v. Hi-Tower Concrete Pumping, 434 So. 2d 506 (La. Ct. App. 1983).

Opinion

434 So.2d 506 (1983)

UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellee,
v.
HI-TOWER CONCRETE PUMPING SERVICE INC., et al., Defendant-Appellant.

No. 15422-CA.

Court of Appeal of Louisiana, Second Circuit.

June 6, 1983.
Rehearing Denied August 3, 1983.

*507 Theus, Grisham, Davis & Leigh by Phil D. Myers, Monroe, for plaintiff-appellee, U.S. Fidelity & Guar. Co.

Davenport, Files & Kelly by Mike C. Sanders, Monroe, for defendant-appellant (third party-plaintiff), Hi-Tower Concrete Pumping Service, Inc.

Sessions, Fishman, Rosenson, Boisfontaine & Nathan by Linda S.A. Burke, New Orleans, for third party-defendant, Thompson Royal Industries.

Grant, Dean & Kneipp by V. Gerald Dean, Monroe, for third party-defendant, Boran Craig Schreck Const.

Carl F. Walker, Monroe, for plaintiff-intervenor, Elton Bryant.

Before HALL, SEXTON and NORRIS, JJ.

NORRIS, Judge.

Plaintiff-intervenor, Elton Bryant appeals a judgment sustaining an exception of lack of jurisdiction in personam over defendant, Boran Craig Schreck Construction Co., Inc., a Florida construction company. Finding no error in the trial court's ruling, we affirm.

In the original petition filed in this proceeding United States Fidelity & Guaranty Co. (USF & G) sued Hi-Tower Concrete Pumping Service, Inc. (Hi-Tower) for worker's compensation benefits paid and to be paid to Elton Bryant, as a result of an injury sustained by Bryant while acting in the course and scope of his employment with HLH Builders, Inc. (HLH). While Bryant was cleaning the intake hopper of a Thompson 875 Module Concrete Pump, the pump was allegedly negligently started by an employee of Hi-Tower causing serious injury to Bryant's hand. Thereafter, the original petition was amended to add Thompson Royal Industries (Thompson), the foreign corporation who manufactured the pump. Hi-Tower then third partied Thompson for indemnification and alternatively contribution. At this point, Bryant intervened naming Thompson and Hi-Tower as defendants and seeking damages. Hi-Tower amended its third party demand to add Bryant as a third party defendant.

Subsequently, Hi-Tower third partied Boran Craig Schreck Construction Co., Inc. (BCS), the Florida construction company which sold the used pump to Hi-Tower. By amended petition of intervention, Bryant added BCS as a defendant alleging that BCS had painted over warning instructions placed by the manufacturer on the pump.[1] BCS then filed the exception of lack of in personam jurisdiction which was sustained by the trial court.

The facts which are relevant to the exception are undisputed and appear from the record to be as follows: BCS is a Florida construction company that is not in the business of selling concrete pumps or pumping trucks. However, because it had purchased a new piece of equipment from Thompson, it no longer had a need for its used pump. A representative from Thompson contacted Larry Manning, the owner of Hi-Tower, by telephone from South Carolina to inform Manning of the availability of the used pump in Florida. Manning initially contacted a representative of BCS by phone to inquire about the pump, after which he traveled to Florida where he negotiated the purchase of the equipment and took delivery. The purchase price of the pump was $50,000. Prior to Manning's travel to Florida, the equipment manager of BCS sent through the mail three photographs of the pump to Manning in Louisiana. Additionally, because the new pump which BCS had purchased had not arrived, Hi-Tower agreed to rent the pump to BCS *508 pending delivery of its new pump. The contractual agreement[2] entered into between BCS and Hi-Tower was sent to Florida for execution by BCS. It is undisputed that BCS has never engaged in the business of selling such pumps; that it has never advertised this equipment or any other equipment for sale in Louisiana; that it did not solicit the sale of this equipment to anyone in Louisiana; and that it does not do nor has it ever done any construction work in Louisiana. Admittedly, BCS knew that the pump would be used in Louisiana.

In written reasons for judgment, the trial court stated:

Third party plaintiff, Hi-Tower Concrete Pumping Service, Inc., concedes that Boran was not "transacting business" or otherwise engaging in any persistent course of conduct in Louisiana. It contends, however, that the single sale of this piece of equipment resulted in "substantial revenue" ($50,000.00 sale price) and that alone was sufficient to subject the nonresident seller to the jurisdiction of the courts of this state. Hi-Tower cites Fisher v. Albany Machine and Supply Company [261 La. 747], 260 So.2d 691 (La.1972), as authority for this proposition.
* * * * * *
This Court interprets Fisher as requiring some minimum contacts in addition to the substantial revenue derived from the sale. Hi-Tower has essentially conceded that there were no minimum contacts by Boran with Louisiana. To subject this nonresident corporation to the jurisdiction of Louisiana courts offends the Due Process Clause of the United States Constitution. See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
Elton Bryant is also a party with an interest in this exception as he filed an intervention in the third party demand. Mr. Bryant submitted three pages of a deposition of Larry G. Manning (owner of Hi-Tower) regarding his purchase of this equipment from Boran. The only thing this testimony adds to the issue of contacts between this seller and the State of Louisiana is that apparently a Max Eastman, who was the Equipment Superintendent of Boran, sent Mr. Manning three photographs of the pump (and possibly the truck) before Mr. Manning went to Florida and bought the equipment. Additionally, while Mr. Manning was in Florida to purchase the equipment, he agreed to rent the pump back to Boran for 2 or 3 months. This deposition does not appear to alter or conflict with the Joint Stipulation which says "... Larry Manning, went to Florida and negotiated the purchase of the equipment, and took delivery of it in Florida and drove it back to Louisiana" and "Boran Craig Schreck neither advertised in Louisiana nor solicited the sale of this equipment in Louisiana...". This Court does not view the testimony of Mr. Manning as disclosing minimum contacts sufficient to bring our present case under the scope of Fisher.
The exception of jurisdiction is sustained.

Only Bryant appeals the sustaining of the exception[3] assigning the following error:

The trial court erred in finding that the contacts between the nonresident seller and the Louisiana consumer did not meet the minimum requirements of due process, and sustaining the exception to personal jurisdiction ...

In essence, Bryant contends on appeal that when the BCS equipment superintendent sent Manning three photographs of the pump after the Thompson representative had contacted Manning from South Carolina, when Manning conducted negotiations from his Monroe telephone in connection with the purchase and lease to Florida for execution by BCS and because BCS knew *509

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434 So. 2d 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-fidelity-v-hi-tower-concrete-pumping-lactapp-1983.