Anders for Anders v. Jacksonville Elec. Authority, AS-209
| Decision Date | 28 December 1983 |
| Docket Number | No. AS-209,AS-209 |
| Citation | 443 So.2d 330 |
| Court | Florida District Court of Appeals |
| Parties | Cynthia ANDERS for Dennis R. ANDERS, decedent, & Richard L. Weaver, Appellants, v. JACKSONVILLE ELECTRIC AUTHORITY, Baldwin-Lima-Hamilton Corporation, Armour and Co., Clark Equipment Co., and Miller Electric Co., Inc., Appellees. |
Randall A. Schmidt, Law Offices of Brent M. Turbow, Jacksonville, for appellants.
Dudley D. Allen, of Wilbur & Allen, Jacksonville, for appellees.
Appellants seek review of an order granting appellees' motions to dismiss. We find that the complaint states a cause of action against appellee Armour & Co., and we therefore reverse the order appealed insofar as it relates to Armour.
As stated in the complaint, appellants' action against appellees is predicated upon the negligent design and manufacture of a "truck crane." The complaint further alleges that: The crane was manufactured by Baldwin-Lima-Hamilton, a Pennsylvania corporation which thereafter merged with appellee Armour; Armour purported to transfer to a wholly-owned subsidiary (Baldwin-Lima-Hamilton, a Delaware corporation) the assets and liabilities acquired as a result of the merger; the subsidiary sold its construction equipment division to appellee Clark Equipment Co.; the subsidiary was then dissolved. Appellees' motions to dismiss, which the trial court granted, assert that the complaint "fails to allege any ultimate fact showing why [appellees] should be deemed liable ...."
In Bernard v. Kee Manufacturing Co., Inc., 409 So.2d 1047 (Fla.1982), the Florida Supreme Court adhered to the traditional corporate law rule
which does not impose the liabilities of the selling predecessor upon the buying successor company unless (1) the successor expressly or impliedly assumes the obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.
Applying this rule in the present case, we find that the complaint fails to allege any factual predicate by which liability could be imposed upon Clark.
The allegations of the complaint, however, are sufficient to bring Armour within the ambit of the exceptions recognized in Kee Manufacturing, so as to withstand Armour's motion to dismiss. The complaint alleges that by the merger Armour acquired the assets and...
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