Brooks v. Inlow, 82-1119

• Decision Date: 25 May 1984
• Docket Number: No. 82-1119,82-1119
• Citation: 453 So.2d 349
• Parties: Jerry W. BROOKS and Melody Brooks v. Ronald INLOW, Frank Chapman, et al.
• Court: Alabama Supreme Court

Page 349

453 So.2d 349

Jerry W. BROOKS and Melody Brooks v. Ronald INLOW, Frank Chapman, et al.

No. 82-1119.

Supreme Court of Alabama.

May 25, 1984.

Stephen J. Flynn and James F. Barter, Jr. of Diamond & Flynn, Mobile, for appellants.

William C. Roedder, Jr. of Hand, Arendall, Bedsole, Graves & Johnston, Mobile, for appellees.

MADDOX, Justice.

This case involves the issue of whether the trial court properly granted summary judgment for seven nonresident defendants because it lacked in personam jurisdiction over them. The Court granted each defendant's motion to dismiss on the ground that it lacked personal jurisdiction over him. We affirm as to those nonresidents who never were physically present in Alabama; we reverse as to those defendants who did come into Alabama.

I

Plaintiff Jerry Brooks was employed as a diesel truck mechanic at a Mobile terminal operated by Enterprise Transportation Company (hereinafter Enterprise). In May of 1981, Brooks ruptured a cervical disc while manually lifting transfer truck tires. Brooks and his wife brought suit in the Mobile County Circuit Court on theories of co-employee negligence, breach of contract, breach of implied contract, and products liability. Numerous individuals were named in the complaint as defendants. The trial court granted summary judgments as to seven of these defendants and entered an appropriate order under Ala.R.Civ.P. 54(b), making his judgments as to these defendants final. The plaintiffs appealed these judgments.

The affidavits of the plaintiffs and the defendants submitted in connection with the motions to dismiss show that all seven defendants are supervisory level employees of Enterprise or its parent company, Enterprise Companies, Inc., both of which have their corporate offices in Texas, and that each defendant is a resident of Texas. None of them had property in Alabama and their only contacts with Alabama were in connection with their employment. Each defendant's admitted contacts with Alabama and his employee classification was as follows:

(1) DAN DUNCAN:

Chairman of the Board of Enterprise Companies, Inc., Duncan had never been in Alabama, and had never had any personal contacts with the personnel at the Mobile terminal.

(2) FRANK CHAPMAN:

Corporate Risk-Director of Claims for Enterprise Companies Inc., Chapman had never been personally to Alabama but had talked with Renfro, the Mobile terminal manager, on at least five occasions regarding claims made at the facility.

(3) VIM MATTINGLY:

Director of Maintenance for Enterprise, Mattingly had been to the Mobile facility on at least one occasion to check the maintenance program and had had at least two telephone conversations from Texas with Brooks, one of which occurred before the injury.

(4) RONALD LEE INLOW:

Safety Supervisor for Enterprise, Inlow had visited the Mobile terminal on at least four occasions between July of 1979 and May of 1982, and at least one of these meetings was termed a "safety meeting." Inlow had had telephone contact with the Mobile terminal on at least three occasions.

(5) DOUGLAS TIPTON:

President of Enterprise Tipton had been to the Mobile Terminal "no more than five times." On at least one of these visits, he attended what was termed a "safety meeting." He also made monthly telephone contact with the Mobile terminal from Texas.

(6) GERALD MARTINDALE:

"Field Safety Man" for Enterprise, Martindale had visited the Mobile terminal on at least six occasions and had made at least six telephone calls per month to the Mobile terminal from Texas.

(7) ROBERT A. GAINES II:

Also a "Field Safety Man" for Enterprise, Gaines had made at least ten trips to the Mobile terminal and at least two telephone calls a month from Texas.

The affidavits of Brooks dispute to some extent those of the defendants:

(1) DAN DUNCAN:

Brooks claimed Duncan owned the company.

(2) FRANK CHAPMAN:

Brooks did not dispute Chapman's affidavit.

(3) VIM MATTINGLY:

Brooks claimed that he had complained of the safety problem to Mattingly in Texas during a training session and that he had discussed the operation at the Mobile facility with Mattingly on at least one occasion.

(4) RONALD LEE INLOW:

Brooks stated that he had seen Ronald Inlow in Mobile in 1981, and further stated: "[H]e red-tagged one of my trailers, which meant that it had to be fixed immediately. Mr. Inlow was inspecting my shop and taking pictures of it. I asked him to please give me some help. Inlow watched me have to lift tires by myself. He never got me any help."

Brooks also stated: "I talked to Ron Inlow every time he came to Mobile. Every time he came, I told him of the unsafe job conditions that I was being forced to work under, I told him how I had to lift these tires manually, I told him how a hydraulic dolly would help me, and I told him how I needed some more men to help me. Every time, Inlow told me, I'll check into it and let you know. He never gave me any assistance ...."

(5) DOUGLAS TIPTON:

Brooks' affidavit stated that Tipton was in charge of maintenance for the Enterprise Transportation Company. Brooks stated: "He was at numerous meetings we had in Mobile, including safety meetings. At these safety meetings, I pleaded for more help and for better equipment, including a decent hydraulic dolly that would not force me to manually lift truck tires. Mr. Tipton was at these meetings as a representative of management when I asked management for safe equipment and more men to help me...."

(6) GERALD MARTINDALE:

Brooks stated that he met with Gerald Martindale frequently about unsafe working conditions. He stated: "Jerrell [sic] Martindale on many occasions saw me having to lift 100-pound tires over three feet into a spare tire rack on the trailer. He saw me having to manually lift 400-pound tandem wheels. I told him that the homemade dolly that the defendants had given me was worthless and that I was going to get hurt unless they gave me a good hydraulic dolly and some more men to help me. I expressed this frequently to Jerrell [sic] Martindale."

(7) ROBERT A. GAINES II:

Brooks stated he had met with Robert Gaines frequently about unsafe working conditions. He stated: "Robert Gaines on many occasions saw me having to lift 100-pound tires over three feet into a spare tire rack on the trailer. He saw me having to manually lift 400-pound tandem wheels. I told him that the homemade dolly that the defendants had given me was worthless and that I was going to get hurt unless they gave me a good hydraulic dolly and some more men to help me. I expressed this frequently to Robert Gaines."

II

For convenience and analysis, we will discuss the defendants in two separate groups. Duncan and Chapman, who were never in Alabama, constitute the first group, and the remaining five constitute the second group.

A. The first group, or the "Texas Two":

These defendants argue they are protected by what they refer to as the "Fiduciary Shield Doctrine," which they claim was recognized by this Court in Thames v. Gunter-Dunn, Inc., 373 So.2d 640 (Ala.1979). In Thames, supra, this Court held that bank officers of an out-of-state bank, who had never been in Alabama and over whom the plaintiff sought in personam jurisdiction in a suit for breach of a lease, an accounting, and foreclosure of a landlord's lien, or alternatively damages for breach of a lease, were not subject to the jurisdiction of Alabama courts. The Court held:

" '[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." ' ... [Quoting from International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).]

"While it is sometimes proper to hold that a foreign corporation or bank whose agents acted in Alabama, and caused ramifications in this state, has sufficient contacts with the state to warrant jurisdiction, it is a totally different matter to hold that individual officers have such minimum contacts. In this case the officers had never been present in Alabama, and there was no proof that the appellees were conducting any personal business either through the use of the corporation as an alter ego, or through personal agents in this state. Thus this Court finds that the minimum contacts necessary to extend personal jurisdiction are lacking. [Emphasis added.]

"Based upon the record, these bank officers performed all acts within the scope of their bank employment. To allow personal jurisdiction over them when they acted solely in the furtherance of their official positions would be to extend the long-arm statute too far. Accordingly, the exercise of jurisdiction over these appellees would be improper under ARCP 4.2."

Thames, supra, at 642-643. See also, Mann v. Frank Hrubetz & Co., 361 So.2d 1021, 1022 (Ala.1978).

Earlier in the Thames opinion, this Court quoted approvingly language from another court's opinion:

"In Idaho Potato Com'n v. Washington Potato Com'n, 410 F.Supp. 171, 181 (D.Idaho 1975), the court said:

" '[U]nless there is evidence that the act by the corporate officer was other than as an agent for the corporation, then personal jurisdiction over the corporate officer will not lie. Fashion Two Twenty, Inc. v. Steinberg, 339 F.Supp. 836, 842 (E.D.N.Y.1971).' "

Thames, supra, at 642.

The Brookses argue that the doctrine recognized in Thames is not applicable to the "Texas Two" because even though never physically present in Alabama, they owed a personal duty to Jerry Brooks which they had either assumed or were delegated responsibility for, and that they breached that duty under the principle set out in Fireman's Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980), and, therefore, that jurisdiction over them could be acquired under Ala.R.Civ.P. 4.2...