985 F.2d 1534 (11th Cir. 1993), 91-8765, Vermeulen v. Renault, United States, Inc.

Docket Nº:91-8765.
Citation:985 F.2d 1534
Party Name:Laura Ann VERMEULEN, Plaintiff-Appellant, v. RENAULT, U.S.A., INC., et al., Defendants, Regie Nationale Des Usines Renault; Defendants-Appellees.
Case Date:March 22, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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985 F.2d 1534 (11th Cir. 1993)

Laura Ann VERMEULEN, Plaintiff-Appellant,

v.

RENAULT, U.S.A., INC., et al., Defendants,

Regie Nationale Des Usines Renault; Defendants-Appellees.

No. 91-8765.

United States Court of Appeals, Eleventh Circuit

March 22, 1993

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Dennis T. Cathey, Cornelia, GA, Benjamin S. Williams, Williams & Henry, Atlanta, GA, for plaintiff-appellant.

M. Diane Owens, Long, Weinberg, Ansley & Wheeler, Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and DUBINA, Circuit Judges, and RONEY, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Like the Phoenix rising from the ashes, this case returns for us to address once again the district court's dismissal of appellant Vermeulen's claims for lack of personal jurisdiction. This panel previously rendered an opinion reversing the district court, Vermeulen v. Renault U.S.A., Inc., 965 F.2d 1014, amended by, 975 F.2d 746 (11th Cir.1992), but our mandate has not yet issued. Now, we again modify our opinion, reversing the district court, although on grounds different from those stated in our previous opinion. Accordingly, we substitute for our earlier opinion the following revised opinion.

REVISED OPINION

I.

On February 16, 1988, Laura Ann Vermeulen suffered an accident while driving her 1982 Renault LeCar near Lawrenceville, Georgia. She sustained a spinal injury that left her a quadriplegic. Vermeulen had purchased the car in January 1988 from her brother. At the time of the purchase, both siblings were residents of North Carolina. Shortly thereafter, but prior to the accident, Vermeulen moved to Georgia.

Appellee Regie Nationale Des Usines Renault (RNUR or Renault), the manufacturer and designer of the 1982 LeCar, is a corporation wholly owned by the French government.

A.

In 1979, RNUR entered into a series of commercial agreements with American Motors Corporation (AMC) and its wholly owned subsidiary, American Motors Sales Corporation (AMSC), pursuant to which AMSC agreed to act as the exclusive marketer and distributor of Renault automobiles in the United States. 1 It is undisputed that AMSC distributed the 1982 Renault LeCar at issue in this case under this distribution arrangement. The stated goals of the agreements between RNUR and AMC/AMSC were, among other things, "to promote the widest distribution of Renault products," and to "develop a dealer network for Renault products in the [United States]." R3-34-Ex. A, at 1. Accordingly, AMSC agreed to purchase Renault vehicles, including LeCars, in France from RNUR, and to import them for resale in the United States.

Although the distribution agreement indicated that AMSC would take full responsibility for marketing and distributing Renault vehicles in the United States, id. at 4,

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the parties contemplated that Renault would be fully involved in decisions affecting the sales of its product. AMSC covenanted to "use its best efforts to carry out the Market Representation Plan." Id. at 6. This plan, not itself part of the record but referenced and defined in the Distributor's Agreement, was a "mutually agreed upon plan, initialled on behalf of the parties [to the Distributor Agreement], for the franchising of Dealers to sell Renault products within the [United States]." Id. at 3.

The Distributor's Agreement also provided that "Renault may from time to time advise [AMSC] of suggested retail prices for Renault vehicles." Id. at 6. Further, the Built-Up Sales Agreement indicated that "[t]he estimated quantities of Renault Products to be purchased and sold hereunder during any Contract Year shall be mutually agreed." R3-34-Ex.B, at 2. 2

Although the Distributor Agreement provided that AMSC would take responsibility for maintaining "a sufficient number of trained and competent personnel" and for instructing such personnel concerning the preparation, servicing and repair of Renault products, it also stated that RNUR would "use its best efforts to provide [AMSC] with suitable assistance in connection with [such] training and instruction responsibilities." R3-34-Ex.A, at 7-8.

Article VII of the Distributor Agreement contemplated that AMSC would maintain responsibility for "determining assortments, minimum quantities, geographical distribution and other matters relating to" parts and accessories offered for sale by Renault pursuant to the Sales Agreements entered into by the parties. The Distributor's Agreement provided, however, that AMSC would "discuss such matters with Renault and give serious consideration to Renault's recommendations." Id. at 8.

Article IX of the Agreement stated that AMSC "shall print such business forms, bearing Renault trademarks and Renault trade names, for exclusive use in its 'Renault' business as Renault and [AMSC] shall mutually agree," and that AMSC would "cause each Dealer ... to maintain such portions of its facilities as are dedicated to product identification and signage in conformity with Renault standards and as mutually agreed." Id. at 10.

Under Article X of the Agreement, Renault retained the full and exclusive right to and ownership of the "Renault" trademark. The Agreement provided that "[a]ny particular use of any [Renault] trademark which, in the sole judgment of Renault, is inconsistent with the image or goodwill of Renault or its business, advertising or public relations policies, will be discontinued immediately after the same comes to the attention of Renault if Renault so notifies [AMSC]." Id. at 11.

Although Article XI of the Agreement provided that AMSC would retain full and exclusive responsibility for advertising, promoting and merchandising Renault products, AMSC covenanted to "work closely with Renault in the planning and developing of themes and strategy and the related budget"; to "build upon the Renault name and image as the manufacturer and designer of outstanding small cars"; and to "verify the technical content of any representation concerning Renault Products." Id. at 12. Article XI continued:

[AMSC] shall not publish or permit to be published any advertising material relating to Renault Products which is likely to mislead or deceive the public or to impair the image or good will of Renault or the reputation of Renault Products. If Renault notifies [AMSC] that any advertising is injurious to Renault's business, or is likely to mislead or deceive the public, or is at variance with the business, advertising

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or public relations policies of Renault, or is likely to impair the image or good will of Renault, [AMSC] agrees to discontinue immediately any such advertising.

Id. at 13.

In Article XII, AMSC agreed to appoint AMC/Renault dealers in accordance with the Market Representation Plan discussed above and undertook to "use its best efforts to assure that Dealers will comply with all sales and service manuals that Renault may from time to time issue relating to the sale and servicing of Renault Products and other matters covered by this Agreement or the Dealer Franchises." Id. at 14. Article XII also stated that "any dealership or dealerships operated by [AMSC] for the sale of Renault Products at retail shall at all times satisfy the standards for Renault dealerships prescribed by this Agreement, the Dealer Franchises and the sales and service manuals that Renault may issue from time to time relating to Dealers." Id. AMSC was responsible for the actual appointment, training and termination of such dealers. Id. at 13. 3

Under Article XIII, Renault warranted its products to AMSC. Id. at 14. Although AMSC warranted the product to the ultimate consumer, Renault covenanted to reimburse AMSC "for warranty work performed by [AMSC] itself or by Dealers within [the United States] with respect to Renault vehicles sold therein." Id. at 15. Article XIII also provided that RNUR would hold harmless and indemnify AMSC against any judgment resulting from lawsuits commenced against AMSC seeking damages for alleged design or other defects in Renault products, and permitted Renault to take over the defense of any such lawsuit if Renault so chose. Id. at 17-18.

Article XV of the Agreement required AMSC to provide RNUR on a regular basis with certain reports and records pertaining to the distribution of Renault products. AMSC was required to provide Renault with (1) a monthly written analysis of its inventories of Renault products; (2) thrice-monthly reports of the then-current dealer stocks of Renault vehicles and the sales of Renault vehicles during the preceding 10-day period; (3) a quarterly report of all Dealer Franchise Agreements entered into during the preceding quarter, a list of all terminations of dealers during that quarter, and an opinion report assessing the impact of such new franchises and terminations on the Market Representation Plan. Id. at 28. AMSC also agreed to "furnish to Renault such written reports of compliance with the Market Representation Plan, and such marketing and customer satisfaction reports, as Renault may from time to time reasonably request." Id. at 29.

Finally, Article XVI of the Agreement stated explicitly that "[t]his Agreement does not constitute [AMSC] the agent or legal representative of Renault for any purpose whatsoever." Id. at 29.

The Master Agreement between Renault and AMC, R3-34-Ex.E, also contained certain provisions relevant to the new distribution arrangements between RNUR and AMC/AMSC. Prior to 1979, Renault U.S.A., RNUR's wholly-owned American subsidiary, had acted as RNUR's distributor in the United States. Under Section 4(c) of the Master Agreement, Renault agreed to cause...

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