Am. Timber & Steel Co. v. Lewis Trucking Co. (Ex parte Am. Timber & Steel Co.)

• Decision Date: 10 August 2012
• Docket Number: 1100884 and 1100885.
• Citation: 102 So.3d 347
• Court: Alabama Supreme Court
• Parties: Ex parte AMERICAN TIMBER & STEEL COMPANY, INC. (In re Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons v. Lewis Trucking Company et al.). Ex parte Getloaded Corporation, TransCore, and Roper Industries, Inc. (In re Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons v. Lewis Trucking Company et al.).

102 So.3d 347

Ex parte AMERICAN TIMBER & STEEL COMPANY, INC.

(In re Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons

v.Lewis Trucking Company et al.).

Ex parte Getloaded Corporation, TransCore, and Roper Industries, Inc.

(In re Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons

v.Lewis Trucking Company et al.).

1100884 and 1100885.

Supreme Court of Alabama.

Sept. 23, 2011.

Rehearing Denied Aug. 10, 2012.

(as to case no. 1100884)

E. Britton Monroe, Taffi S. Stewart, and Rachel E. VanNortwick of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for petitioner American Timber & Steel Company, Inc.

William C. McGowin and Robert E. Poundstone IV of Bradley Arant Boult Cummings LLP, Montgomery; and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for petitioners Getloaded Corporation, TransCore, and Roper Industries, Inc.

Frank M. Wilson, Montgomery; Jere L. Beasley, J. Greg Allen, and Kendall C. Dunson of Beasley Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery; Walter E. McGowan of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee; Lynn W. Jinks III and Christina D. Crow of Jinks, Crow & Dickson, P.C., Union Springs; John W. Waters, Jr., Union Springs; Michael A. Rutland of Rutland & Jankiewicz, LLC, Eufaula; Elizabeth C. Smithart, Union Springs; and L. Shane Seaborn and Myron Penn of Penn & Seaborn, LLC, Clayton, for respondents Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons.

MURDOCK, Justice.

Getloaded Corporation, TransCore,¹ and Roper Industries, Inc. (hereinafter collectively referred to as “the Getloaded defendants”), and American Timber & Steel Company, Inc. (“ATSC”), petition this Court for writs of mandamus directing the Montgomery Circuit Court to dismiss them as defendants based on a lack of personal jurisdiction in actions filed by Bishop Ivey, Carolyn Kelley, Joan Foye Wynn, Sonie Taylor, Annette Fenn, Kendra Bouier, and Jenny Simmons (hereinafter collectively referred to as “the plaintiffs”). We have consolidated the petitions for the purpose of writing one opinion. We deny ATSC's petition and grant the Getloaded defendants' petition.

I. Facts and Procedural History

ATSC is an Ohio corporation with its principal place of business in Ohio. ATSC's primary business is the purchase and sale of lumber and timber products for the commercial-construction industry.

The Getloaded defendants are all related entities. Roper Industries is a Delaware corporation with its principal place of business in Florida. Roper Industries is the parent corporation of TransCore and either the parent corporation or grandparent corporation of Getloaded Corporation. See note 3, infra. TransCore is a Delaware corporation with its principal place of business in Pennsylvania. TransCore is either the parent corporation or a sister corporation of Getloaded Corporation. See note 3, infra. Getloaded Corporation is a Virginia corporation with its principal place of business in that state.

In late September or early October 2008, ATSC sold some lumber owned by it and located at a facility operated by Texas Forest Products, Inc.,² in Gilmer, Texas, to Barfield Fence, a business located in Apopka, Florida. Eric Duffey, the shipping-traffic manager for ATSC, attempted through his usual contacts to find a carrier for the lumber at a price of $2,000. When those avenues of contact failed, Duffey listed the proposed shipment and requested shipping quotes on Getloaded.com, a Web site to which ATSC is a subscriber, or “member,” and which the plaintiffs alleged is “operated” by the Getloaded defendants.³ In part, the Web site includes a “load board” on which truckers can advertise that their trucks are available and shippers and brokers can advertise that they have loads that need to be transported. The Web site also has a message board that allows truckers, shippers, and brokers to communicate with one another.

After seeing ATSC's post, a representative of Lewis Trucking Company (“Lewis”), which is located in Georgia and which is also a member of Getloaded.com, contacted Duffey. Thereafter, ATSC and Lewis agreed that Lewis would transport the lumber from Texas to Florida for ATSC's asking price of $2,000. Duffey used “the Federal Motor Carrier SafeStat” Web site to research Lewis's United States Department of Transportation motor carrier, or “MC,” number before he agreed to Lewis's transporting ATSC's materials. The Web site apparently is operated by the Department of Transportation, and anyone can use the site to conduct research on a carrier, provided the researcher has the carrier's MC number, its legal name, and its domicile. According to Duffey, research based on MC numbers commonly is used to confirm whether a carrier's “authority is in effect, ... insurance is still up to date, and that they don't have ... a lot of violations or ... problems.” Duffey agreed that carriers on “Safestat” are assigned “SEA safety numbers” between 1 and 100 and that as a carrier's SEA safety number “approache[s] 100, you're about as unsafe as you can get.” He admitted that he was aware that Lewis had a SEA safety number of 98.22 when he decided ATSC would utilize Lewis's services. According to Duffey, he made the decision to use Lewis despite its poor SEA safety number because Lewis had not had a safety violation for two years. There is no evidence indicating that Duffey made the decision to use Lewis in reliance upon any representation made by any of the Getloaded defendants on the Web site.

We note that the safety record of a carrier could be determined by using “links” found on Getloaded.com to connect to the Web sites of one or more other companies who advertise on the Getloaded site.⁴ Also, Bonnie Davis, a customer-support supervisor for the Web site, see note 3 supra, testified that she and fellow employees would provide, upon request, information to Getloaded.com members from the “SafeStat” Web site. We note that the plaintiffs alleged in their complaint that despite its poor safety record, Lewis was allowed to join Getloaded.com as a member and “list itself as a safe, qualified common carrier available to shippers and/or brokers.” The plaintiffs further alleged that the Getloaded defendants “made no effort to inquire into the accident history, vehicle history, and/or driver's history despite the fact other similar Web sites, including those operated by the [Getloaded defendants ⁵], routinely undertake such an investigation before allowing ... Lewis ... to be listed as a safe hauler of freight on Getloaded.com.”

Andrew Carter, an employee of Lewis, drove the 18–wheel tractor-trailer truck that carried the lumber shipment for ATSC; the truck was owned by Lewis. Carter apparently picked up the lumber from Texas Forest Products on October 2, 2008. The lumber was scheduled for delivery to Barfield Fence on October 6, 2008. On October 3, 2008, Carter was driving the loaded truck west on Alabama Highway 82 in Montgomery County, Alabama. At the same time, an Alabama Department of Corrections (“ADOC”) van was traveling east on Highway 82. The ADOC van was carrying six applicants for employment with ADOC from the Bullock County Correctional Facility to the Draper Correctional Facility in Elmore County. The van was being driven by an ADOC corrections officer.

The plaintiffs allege that approximately four miles west of the Bullock County line, Carter attempted to pass another 18–wheel tractor-trailer truck being driven by Johnny Nunez for Swift Transportation Company (“Swift”). Although the trucks were in a no-passing zone, Nunez allegedly signaled Carter that it was clear to pass. While attempting to execute the pass, the truck driven by Carter hit the ADOC van in a frontal-impact collision. The van subsequently was engulfed in fire, and all six passengers and the driver of the ADOC van were killed in the accident.

The plaintiffs are representatives of the estates of the occupants of the ADOC van who died as a result of the October 3, 2008, accident. The plaintiffs filed separate actions in the Montgomery Circuit Court between October 31, 2008, and November 3, 2008. The plaintiffs' respective complaints asserted claims against Lewis, Carter, Nunez, and Swift. In five of the actions, the plaintiffs also asserted claims against ATSC for allegedly improperly loading the lumber into the Lewis truck.⁶ The lumber allegedly shifted when Carter attempted to avoid the accident, which, in turn, contributed to his losing control of the truck. ATSC filed an answer to the complaints in which, among other things, it pleaded lack of personal jurisdiction. In April 2009, the claims against ATSC were voluntarily dismissed without prejudice. The plaintiffs then reached a settlement with Swift and Nunez.

In July 2010, all the plaintiffs filed a consolidated motion to amend their respective complaints. The circuit court granted the motion. On August 30, 2010, the plaintiffs filed a consolidated amended complaint that “reallege [d] all paragraphs of their Complaints” and added the Getloaded defendants and ATSC as defendants. In part, the amended complaint alleged that ATSC “owed a duty to members of the traveling public to use reasonable care to investigate and evaluate the competence and safety record of any carrier hired to transport freight” and that it had negligently or wantonly breached that duty. It also alleged that ATSC had negligently entrusted a lumber load to Lewis “knowing that [Lewis] and its drivers were unfit and dangerous” for performing such a task.

As to the Getloaded defendants, the amended complaint alleged that they operated the Getloaded.com Web site; that they “owed or assumed a duty to members of the traveling public to use reasonable care to investigate and evaluate the competence and safety record of any carrier allowed to be listed for hire...