Estabrook v. Wetmore

• Decision Date: 22 July 1987
• Docket Number: No. 86-516,86-516
• Citation: 529 A.2d 956,129 N.H. 520
• Parties: Lois ESTABROOK, Administratrix of the Estate of Nelson Estabrook v. Byron F. WETMORE.
• Court: New Hampshire Supreme Court

Page 956

529 A.2d 956

129 N.H. 520

Lois ESTABROOK, Administratrix of the Estate of Nelson Estabrook v. Byron F. WETMORE.

No. 86-516.

Supreme Court of New Hampshire.

July 22, 1987.

Devine, Millimet, Stahl & Branch P.A., of Manchester (Laurence W. Getman on the brief, and E. Donald Dufresne orally), for plaintiff.

James S. Yakovakis P.A., Manchester, by brief and orally, for defendant.

BATCHELDER, Justice.

This case is an interlocutory appeal from an order of the Superior Court (Wyman, J.) denying the defendant's motion to dismiss for lack of personal jurisdiction. The issue is whether the State of New Hampshire has personal jurisdiction over the vice-president of a Connecticut corporation, when he is sued as a co-employee under the workers' compensation co-employee suit rule of Estabrook v. American Hoist & Derrick, Inc., 127 N.H. 162, 498 A.2d 741 (1985), and when his only jurisdictional contact with New Hampshire is through conduct undertaken in his capacity as the corporation's officer. On the record before us, we hold that the State may subject the defendant to its jurisdiction. Accordingly, we affirm the trial court's order.

The plaintiff's decedent was crushed inside a pugmill at an asphalt plant in Manchester operated by Lane Construction Company (Lane). In Estabrook v. American Hoist & Derrick, Inc. supra, this court held that the workers' compensation statute's bar to suits against co-employees was unconstitutional. The plaintiff then initiated the present action by serving the New Hampshire attorney general. The defendant is the officer responsible for safety in the Lane plants and operations in New Hampshire and the approximately thirty other States in which Lane does business. The plaintiff's writ alleges, in simplified form, that the defendant had a duty of reasonable care to provide a safe plant, in general, and a safe pugmill, in particular, to persons such as the decedent, whom he knew would be there; that he breached the duty by performing certain acts negligently and failing to perform certain other acts; and that the breach of duty caused the plaintiff's decedent's death. The writ alleges neither that the defendant breached his duty while he was present in New Hampshire nor that the defendant has ownership, use, or possession of any real or personal property in New Hampshire. However, the defendant's deposition shows that, as part of his general supervisory duties, he has traveled to New Hampshire at least thirty-five times over the past thirteen years. In addition, he has supervised the distribution to Lane's plants of written materials concerning safety procedures and equipment. Thus, the defendant's contacts with New Hampshire appear to consist of actions taken in both Connecticut and New Hampshire. The plaintiff asserts jurisdiction under RSA 510:4, the long-arm statute. The statute declares in paragraph I:

"Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above."

This court has consistently interpreted this statute to grant jurisdiction whenever the due process clause of the United States Constitution permits it. Roy v. North American Newspaper Alliance, 106 N.H. 92, 95, 205 A.2d 844, 846 (1964).

The leading federal case on personal jurisdiction is International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Until its decision in International Shoe, with a few exceptions, the United States Supreme Court read the due process clause to limit State courts' jurisdiction to persons within the territorial boundaries of the State. International Shoe changed the long-standing rule so as to permit jurisdiction over persons beyond the State's boundaries, if they had such sufficient contacts with the State that jurisdiction would not offend "traditional notions of fair play and substantial justice." Id. at 316, 66 S.Ct. at 158. In the cases applying International Shoe, the focus has usually been on whether the defendant has "purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958).

The two leading New Hampshire cases applying federal law regarding jurisdiction based on out-of-State conduct are Hall v. Koch, 119 N.H. 639, 406 A.2d 962 (1979) and Tavoularis v. Womer, 123 N.H. 423, 462 A.2d 110 (1983). Under Hall and Tavoularis RSA 510:4 subjects a non-resident defendant, whose out-of-State conduct has allegedly resulted in a tort in New Hampshire, to the jurisdiction of the New Hampshire courts when the impact in New Hampshire of the out-of-State conduct was more than fortuitous, so that the defendant knew or should have known his conduct could injure a person here. When a non-resident defendant performs allegedly tortious acts in New Hampshire, little doubt clouds a finding that New Hampshire has jurisdiction. Hutchings v. Lee, 119 N.H. 85, 87, 398 A.2d 68, 69-70 (1979); Bouchard v. Klepacki, 116 N.H. 257, 258, 357 A.2d 463, 464 (1976).

The defendant does not attack these decisions, but argues that corporate officers are protected from their application by the fiduciary shield doctrine. The fiduciary shield doctrine holds that the acts of a corporate employee performed in his corporate capacity generally do not form the basis for jurisdiction over him in his individual capacity. Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 508 F.Supp. 1322, 1347 (E.D.N.Y.1981); see generally, R. Koenig, Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield, 38 Stan.L.Rev. 813 (1986). The doctrine began in New York as an interpretive tool in applying New York's long-arm statute, Boas & Associates v. Vernier, 22 A.D.2d 561, 563, 257 N.Y.S.2d 487, 490 (1st Dept.1965), but has been given constitutional force in several federal and state courts. See, e.g., Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87, 92-93 (2d Cir.1975); Wilshire Oil Co. of Texas v. Riffe, 409 F.2d 1277, 1281-82 (10th Cir.1969); State Sec. Ins. Co. v. Frank B. Hall & Co., Inc., 530 F.Supp. 94, 97 (N.D.Ill., E.D.1981); Idaho Potato Com'n v. Washington Potato Com'n, 410 F.Supp 171, 180-84 (D. Idaho 1975); State ex rel. Miller v. Internal Energy, Etc., 324 N.W.2d 707 (Iowa 1982). Contra, e.g., Columbia Briargate Co. v. First Nat. Bank, 713 F.2d 1052, 1057-65 (4th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1001, 79 L.Ed.2d 233 (1984); McGowan Grain, Inc. v. Sanburg, 225 Neb. 129, 403 N.W.2d 340, 350-51 (1987). The rationale of the doctrine is "the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer." Marine Midland Bank, N.A. v. Miller, 664 F.2d 899,...