Frye v. Smith

• Decision Date: 14 January 2011
• Docket Number: 1091386.
• Citation: 67 So.3d 882
• Parties: Wesley FRYE, as personal representative of the estate of Rhonda Rainey, deceased; and Roderick Stacy Arthur, as the father and next friend of Ryan Arthur and Roderick Arthur, minorsv.John F. SMITH, Harry J. Pearce, and J. Michael Losh.
• Court: Alabama Supreme Court

67 So.3d 882

Wesley FRYE, as personal representative of the estate of Rhonda Rainey, deceased; and Roderick Stacy Arthur, as the father and next friend of Ryan Arthur and Roderick Arthur, minors

v.John F. SMITH, Harry J. Pearce, and J. Michael Losh.

1091386.

Supreme Court of Alabama.

Jan. 14, 2011.

William W. Smith and W. Cone Owen, Jr., of Smith & Alspaugh P.C., Birmingham, for appellants.Kevin C. Newsom and Andrew L. Brasher of Bradley Arant Boult Cummings LLP, Birmingham; and Chilton Davis Varner, Philip E. Holladay, Jr., and Susan M. Clare of King & Spalding LLP, Atlanta, Georgia, for appellees.COBB, Chief Justice.

Wesley Frye, as personal representative of the estate of Rhonda Rainey, deceased, and Roderick Stacy Arthur, as father and next friend of Ryan Arthur and Roderick Arthur, minors (collectively, “the plaintiffs”), appeal from the order of the Calhoun Circuit Court dismissing their claims against John F. Smith, Jr., Harry J. Pearce, and J. Michael Losh based on a lack of personal jurisdiction. The plaintiffs also challenge the order of the Calhoun Circuit Court denying their motion to supplement the record on appeal. We affirm.

Facts

On or about June 19, 2006, Rhonda Rainey and minors Roderick Arthur and Ryan Arthur were involved in an automobile accident while they were passengers in a 1998 Chevrolet Blazer sport-utility vehicle being driven by Christopher Rainey, Rhonda's husband and Roderick's and Ryan's stepfather. Roderick and Ryan were injured, and Rainey died as a result of injuries sustained in the accident. On June 17, 2008, the plaintiffs filed a complaint in the Calhoun Circuit Court naming as defendants General Motors Corporation (“GM”), the manufacturer of the Blazer, and Massey Chevrolet–Olds–Geo, Inc., the dealer who sold the Raineys the Blazer. The plaintiffs sought damages for wrongful death as to Rhonda and for personal injuries as to Roderick and Ryan, alleging claims of negligence and breach of warranty, as well as claims under the Alabama Extended Manufacturer's Liability Doctrine (“the AEMLD”).

On June 12, 2009, GM filed a notice of bankruptcy in the United States Bankruptcy Court for the Southern District of New York, thereby invoking the automatic stay codified at 11 U.S.C. § 362.

On September 22, 2009, the plaintiffs amended their complaint to state claims against the following individuals: John F. Smith, Jr., former chairman of the board of directors of GM; Harry J. Pearce, former vice chairman of the board of directors of GM; and J. Michael Losh, former executive vice president of GM (Smith, Pearce, and Losh are hereinafter referred to as “the individual defendants”).

On November 2, 2009, the individual defendants moved to dismiss the claims against them for lack of personal jurisdiction. In support of the motion to dismiss, the individual defendants each submitted an affidavit.

On November 9, 2009, the trial court set a hearing date on the individual defendants' motion to dismiss. On November 18, 2009, the plaintiffs moved for a continuance of the hearing until after the individual defendants served a response to interrogatories propounded by the plaintiffs. On November 25, 2010, the trial court granted the plaintiffs' motion for a continuance.

On November 23, 2010, the plaintiffs filed a second amendment to their complaint. In it, they made the following allegations:

“That the defendant John F. Smith, Jr. was Chairman of the Board of Directors of [GM] from January 1996 to May 2003, served as Chief Executive Officer of said corporation from November 1992 to June 2000, and was President of same from April 1992 to October 1998.

“... That the defendant Harry J. Pearce was Vice Chairman of [GM] and a member of the Board of Directors of same from 1996 to 2001.

“... That the defendant J. Michael Losh was Executive Vice President and Chief Financial Officer of [GM] from 1994 to 2000.

“... That [the individual defendants] held said positions in the corporate business as set out in the next preceding three paragraphs during the time that the 1998 model Blazer motor vehicles, like and including the one which is the subject of this suit, were designed, manufactured, marketed and placed in the stream of commerce in the regular course of the corporate business.

“That by virtue of their said positions, said defendant officers had affirmative official responsibility in the management and control of the corporate business at the time that the 1998 model Blazer motor vehicles, like and including the one which is the subject of this suit, were designed, manufactured, marketed and placed in the stream of commerce in the regular course of corporate business.

“... That the defendant officers knew or should have known at the time said vehicles were designed, manufactured, marketed and placed in the stream of commerce in the regular course of the corporate business that said 1998 model Blazer motor vehicles were defective and unreasonably dangerous because of those design defects as alleged in the original complaint.

“... That the corporate business and the said defendant officers had the expectation that the said 1998 model Blazer motor vehicles would be purchased by consumers in Alabama and the 1998 model motor vehicle which is the subject of this suit was purchased by a consumer in Alabama.

“....

“... That at the time the 1998 model Blazer motor vehicles were placed in the stream of commerce and thereafter during the time that the said defendant officers held their aforesaid positions with the corporate business, the said defendant officers knew or should have known by virtue of lawsuits, judgments, settlements, tests, crash tests, reports, studies, complaints or otherwise that said 1998 model Blazer motor vehicles were defective and unreasonably dangerous in regard to those defects as alleged in the original complaint.

“....

“... That the corporate business and the said defendant officers, separately and severally, had the expectation that the said 1998 model Blazer motor vehicles would be purchased by consumers in Alabama and the motor vehicle that is the subject of this suit was purchased in Alabama.”

On December 18, 2010, the individual defendants again moved to dismiss the claims against them for lack of personal jurisdiction and submitted affidavits in support of the motion. In his affidavit, Smith stated:

“I was Chairman of the Board of Directors of [GM] from January 1996 to May 2003, I also served as Chief Executive Officer from November 1992 to June 2000 and was President from April 1992 to October 1998.

“... In my roles as Chairman of the Board of Directors, Chief Executive Officer, and President of [GM], I had no direct involvement in or immediate responsibility for the engineering, design, or product development functions of [GM], including the design, manufacture, testing, marketing, or placing into the stream of commerce of 1998 Chevrolet Blazers. As the Chairman of the Board of Directors, Chief Executive Officer, and President, my ‘affirmative official responsibilit[ies]’ did not include or involve direct review of the engineering, design, and other product development decisions made regarding the design, manufacture, testing, marketing, or placing into the stream of commerce 1998 Chevrolet Blazers.

“... At the time the 1998 Chevrolet Blazer was placed into the stream of commerce by [GM], I had no knowledge of any lawsuits, judgements, settlements, tests, crash tests, reports, studies, complaints, or any other information that caused me to believe that the 1998 Chevrolet Blazer was defective or unreasonably dangerous or likely to be dangerous in any manner whatsoever, including the manner alleged by [the] Plaintiffs in this lawsuit. I also have not been made aware of any facts or information since the 1998 model year Chevrolet Blazers were placed into the stream of commerce that has caused me to believe that those vehicles are defective or unreasonably dangerous as alleged in [the] Plaintiffs' Amended Complaints. In my roles as Chairman of the Board of Directors, Chief Executive Officer, and President of [GM], my ‘affirmative official responsibilit[ies]’ did not include reviewing the engineering, design, and other product development decisions made during the design, engineering, manufacture, testing, marketing, and placing into the stream of commerce of specific models of [GM] cars and trucks, and I was never asked or called upon to review any such decisions made relating to the 1998 Chevrolet Blazer.

“... In my roles as Chairman of The Board of Directors, Chief Executive Officer, and President of [GM], I was not personally involved in or responsible for authorizing or directing that any warnings be provided or not provided with the 1998 Chevrolet Blazer. It was not within my ‘official affirmative responsibilit[ies][’] as Chairman of the Board of Directors, Chief Executive Officer, or President to decide whether or not specific warnings were provided with [GM] vehicles or what the content of those warnings should be.

“... In my roles as Chairman of the Board of Directors, Chief Executive Officer, and President of [GM], I also was not personally involved in or responsible for authorizing or directing that any recall be initiated or not initiated with respect to the 1998 Chevrolet Blazer. It was not within my ‘official affirmative responsibilit[ies][’] as Chairman of the Board of Directors, Chief Executive Officer, or President to decide whether or not to recall [GM] vehicles.”

Pearce and Losh submitted affidavits identical to the above affidavit submitted by Smith, with the exception of the affiant's names and the titles of the positions held by the affiant at GM.

A second set of affidavits from the individual defendants also accompanied the individual defendants' December 18, 2010, motion to dismiss. In Smith's second affidavit, he made the following statements:

“I currently reside in Florida. I have never maintained a residence in Alabama or...