681 S.E.2d 382 (N.C.App. 2009), COA08-944, Brown v. Meter

Docket Nº:COA08-944.
Citation:681 S.E.2d 382
Opinion Judge:ERVIN, Judge.
Party Name:Edgar D. BROWN and Pamela Brown, Co-Administrators of the Estate of Julian David Brown, and Karen M. Helms, Administratrix of the Estate of Matthew M. Helms, Plaintiffs, v. Eric R. METER, French Soccer Network, European Soccer Network, North Carolina Youth Soccer Association, Inc., The Goodyear Tire & Rubber Company, Goodyear Dunlop Tires Europe B.
Attorney:Bell, Davis & Pitt, P.A., by William K. Davis, Charlot F. Wood, and Kevin G. Williams, Winston-Salem, for Defendants-Appellants. Kirby & Holt, L.L.P., by David F. Kirby and William B. Bystrynski, Raleigh, for Plaintiffs-Appellees.
Judge Panel:WYNN and STEPHENS, Judges concur.
Case Date:August 18, 2009
Court:Court of Appeals of North Carolina
 
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Page 382

681 S.E.2d 382 (N.C.App. 2009)

Edgar D. BROWN and Pamela Brown, Co-Administrators of the Estate of Julian David Brown, and Karen M. Helms, Administratrix of the Estate of Matthew M. Helms, Plaintiffs,

v.

Eric R. METER, French Soccer Network, European Soccer Network, North Carolina Youth Soccer Association, Inc., The Goodyear Tire & Rubber Company, Goodyear Dunlop Tires Europe B.V., Goodyear Luxembourg Tires SA, Goodyear SA, Goodyear Lastikleri T.A.S. and Goodyear Dunlop Tires France, SA., Defendants.

No. COA08-944.

Court of Appeals of North Carolina.

August 18, 2009

Heard in the Court of Appeals 10 February 2009.

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[Copyrighted Material Omitted]

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Appeal by Defendants from order entered 1 May 2008 by Judge Gary E. Trawick in Onslow County Superior Court.

Bell, Davis & Pitt, P.A., by William K. Davis, Charlot F. Wood, and Kevin G. Williams, Winston-Salem, for Defendants-Appellants.

Kirby & Holt, L.L.P., by David F. Kirby and William B. Bystrynski, Raleigh, for Plaintiffs-Appellees.

ERVIN, Judge.

Goodyear Luxembourg Tires SA (Goodyear Luxembourg), Goodyear Lastikleri T.A. (Goodyear Turkey), and Goodyear Dunlop Tires France SA (Goodyear France) (collectively, Defendants) appeal from an order entered 1 May 2008 denying their motions to dismiss for lack of personal jurisdiction and concluding that the " [e]xercise of general jurisdiction over defendants comports with Due Process and does not offend traditional notions of fair play and justice." After a thorough review of the record and the applicable law, we affirm the trial court's order.

Matthew Helms and Julian Brown (Decedents), two thirteen-year-old soccer players who resided in North Carolina, died from injuries suffered in a bus wreck on 18 April 2004 outside Paris, France. Decedents were traveling to Charles de Gaulle Airport in preparation for returning to North Carolina at the time of the accident. According to the amended complaint filed by Edgar D. Brown and Pamela Brown, co-administrators of the estate of Julian Brown, and Karen M. Helms, Administratrix of the estate of Matthew Helms (together, Plaintiffs), on 17 April 2006, one of the bus tires " designed, manufactured and distributed" by Defendants failed when its plies separated. The tire that failed was a Goodyear Regional RHS tire manufactured by Goodyear Turkey, which operates a manufacturing plant located in that country. Plaintiffs sought relief from a series of Goodyear affiliates, including Goodyear France, Goodyear Luxembourg, and Goodyear Turkey on a number of theories arising from an alleged negligent " design, construction, testing, and inspection" of and a failure to warn about alleged latent defects in the Goodyear Regional tire in question.1

On 9 March 2007, Defendants filed motions to dismiss predicated on an alleged lack of personal jurisdiction pursuant to N.C. Gen.Stat. § 1A-1, Rule 12(b)(2).2 The dismissal motions filed by Defendants and other Goodyear affiliates were supported by affidavits executed by Philippe Degeer, the Director and Vice President Consumer Tires E.U. of Goodyear Dunlop Tires Europe B.V.; Hermann Lange, the Finance Director of Goodyear Luxembourg Tires SA and Goodyear SA; Ersin Özkan, Sales and Marketing Director of Goodyear Lastikleri T.A., and Korhan Ul'un Beyani, Corporate Secretary of Goodyear Lastikleri T.A.; and Olivier Rousseau,

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General Manager of Goodyear Dunlop Tires France S.A. On 7 June 2007, Plaintiffs filed the affidavit of Robert C. Ochs, P.E., P.C. (Ochs). The trial court heard arguments on Defendants' dismissal motions on 11 June 2007, after which it took Defendants' dismissal motions under advisement. On 28 September 2007, Plaintiffs took the deposition of Donn P. Kramer, Director of Product and Supply Chain Management for Commercial Systems for Goodyear Tire and Rubber Company, pursuant to N.C. Gen.Stat. § 1A-1, Rule 30(b)(6). On 6 December 2007, an affidavit executed by Kramer containing additional information relating to the delivery of tires manufactured by Defendants into North Carolina was filed. A final hearing on Defendants' dismissal motion was held at the 10 December 2007 session of the Onslow County Superior Court.3

On 1 May 2008, the trial court entered an order denying Defendants' dismissal motions. In denying Defendants' motions, the trial court made the following findings of fact:

1. Matthew Helms of Jacksonville and Julian Brown of Charlotte, two 13-year-old youth soccer players, died from injuries suffered in a bus wreck that occurred on April 18, 2004, near Paris, France. Plaintiffs have alleged that as the decedents rode on a bus headed to the airport in Paris to return home to North Carolina, one of the bus' tires, designed, manufactured and distributed by the Goodyear defendants, failed when its plies separated, causing the bus to leave the highway and overturn.

2. Defendants Goodyear [Luxembourg]; Goodyear [Turkey]; and Goodyear [France] (hereinafter " defendants" ) moved to dismiss for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the N.C. Rules of Civil Procedure and N.C.G.S. § 1-75.4.

3. The subject tire that allegedly failed was a Goodyear Regional tire, which was manufactured by defendant Goodyear [Turkey].

4. The subject tire contained information that was written entirely in English, including warnings and directions, U.S. Department of Transportation markings placed on the tire to allow it to be sold in the United States, and markings to show it was manufactured as qualified for sale in the United States.

5. The subject Goodyear Regional tire has a U.S. code listing load and pressure ratings that conform to United States standards set by the Tire and Rim Association, the standardizing organization for the tire industry in the United States. The tire also contains a " Safety Warning," written in English, which conforms to the warnings found on all tires for sale in the United States.

6. During the period from 2004 through a portion of 2007, at least 5906 tires made by Goodyear [Turkey] were shipped into North Carolina for sale, although not by the original manufacturer.

7. During the period from 2004 through a portion of 2007, at least 33,923 tires made by Goodyear [France] were shipped into North Carolina for sale, although not by the original manufacturer.

8. During the period from 2004 through a portion of 2007, at least 6402 tires made by Goodyear [Luxembourg] were shipped into North Carolina for sale, although not by the original manufacturer.

9. The number of tires shipped into North Carolina from each of these manufacturers may actually be substantially higher, in that The Goodyear Tire and Rubber Company (hereinafter " Goodyear" ), after being noticed for a 30(b)(6) deposition, failed to determine how many vehicles equipped with tires from these foreign defendant manufacturers are imported into the

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U.S. and shipped into North Carolina for sale each year.

10. The defendants, on a continuous and systematic basis, caused tires to be sent into the United States for sale, and knew or should have known that some of those tires were distributed for sale to North Carolina residents, and the defendants continue to send tires for sale into the United States and know or should know that some of those tires continue to be sold to North Carolina residents on a continuous and systematic basis.

11. The sale of these tires generates substantial revenue for Goodyear, these defendant companies and its related companies.

12. The defendants, as manufacturers, did not have their own distribution system for the sale of their tires, but instead used their Goodyear parent and affiliated companies to distribute the tires they manufactured to the United States and North Carolina.4

13. The defendants knew or should have known that tires they manufactured were shipped to the United States through their Goodyear parent and affiliated companies and sold in North Carolina on a continuous and systematic basis.

14. The defendants purposefully and deliberately availed themselves of the North Carolina market for tires and substantially profited from sales of their tires in North Carolina.

15. The defendant companies have continuous and systematic contacts with North Carolina and are conducting substantial activity within North Carolina.

16. Defendant Goodyear [Turkey] is a wholly owned subsidiary of defendant, [t]he Goodyear Tire and Rubber Company, which is based in the United States. All three of the foreign defendant companies are subsidiaries of Goodyear in the United States and as such have additional, abundant ties to the United States.

17. The defendant companies have deliberately attempted to take advantage of the tire market in North Carolina by designing, manufacturing and causing tires to be distributed for sale to the North Carolina market, and those tires are sold in North Carolina.

18. Because all three companies have manufactured tires shipped into North Carolina for sale that by clear implication and inference are used on thousands of vehicles throughout North Carolina, they could reasonably anticipate being haled into court in North Carolina.

19. The quantity of the defendants' contacts with North Carolina, which includes sales of between 5,900 and 34,000 tires within the state, generating substantial revenues and substantial commercial activity in North Carolina, weighs in favor of a finding of general jurisdiction over the defendants.

20. The quality of those contacts, which include systematic and repeated contacts with the state of North Carolina for the purpose of commerce, along with the defendants' ownership by U.S. corporations doing substantial business in North Carolina, weighs in favor of a finding of general jurisdiction over the defendants.

21. The cause of action in this case is closely related to the contacts with the defendants, in that the...

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