Jack Pickard Dodge, Inc. v. Yarbrough

• Decision Date: 21 November 1977
• Docket Number: No. GG-403,GG-403
• Citation: 352 So.2d 130
• Court: Florida District Court of Appeals
• Parties: JACK PICKARD DODGE, INC., a corporation, Appellant, v. Ella Mae YARBROUGH, C. F. Yarbrough, her husband, Chrysler Motor Corporation, a corporation and Powell Chrysler Plymouth, Inc., a Florida Corporation, Appellees.

Page 130

352 So.2d 130

JACK PICKARD DODGE, INC., a corporation, Appellant, v. Ella Mae YARBROUGH, C. F. Yarbrough, her husband, Chrysler Motor Corporation, a corporation and Powell Chrysler Plymouth, Inc., a Florida Corporation, Appellees.

No. GG-403.

District Court of Appeal of Florida, First District.

Nov. 21, 1977.

Robert L. Cowles and James R. Barfield of Cowles, Coker & Myers, Jacksonville, for appellant.

Charles Cook Howell, III of Howell, Howell, Liles & Braddock, Jacksonville, for appellees.

ERVIN, Judge.

This is an interlocutory appeal from an order denying motions to quash or dismiss for lack of personal jurisdiction. Appellee Ella Mae Yarbrough filed a complaint in Duval County, Florida, alleging negligence on the part of Chrysler Corporation and the local Jacksonville dealership in the manufacture and servicing of her automobile. Chrysler filed a third party complaint against appellant Jack Pickard Dodge, Inc., a North Carolina dealer. Chrysler alleged a recall notice was issued to all dealers, advising them of the possibility of defective parts in certain models which could fail, resulting in loss of vehicle control. The Chrysler directive stated corrections should be promptly made. It was this work that was done by Jack Pickard, allegedly in a negligent manner. The car in question, at the time of the servicing, was under lease to Avis Rent-A-Car. It was sold at auction in Florida and eventually sold to the Yarbroughs by the Jacksonville dealer. Pickard has no nexus with Florida, other than the servicing of a car that eventually was sold to a Florida resident and then caused injury in Florida.

Jack Pickard argues Section 48.193, Florida Statutes (1975) is unconstitutional as applied here. That section the Florida long-arm statute reads in part:

"(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

(b) Commits a tortious act within this state.

(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:

1. The defendant was engaged in solicitation or service activities within this state which resulted in such injury; or 2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury."

Jack Pickard admits it comes within the scope of (1)(f)2 which permits process upon a defendant who services a product used within this state, with resulting injury to the user. This court recently construed the long-arm statute section in Dunn v. The Upjohn Company, 350 So.2d 127 (Fla. 1st DCA 1977). There plaintiff brought a wrongful death action against a drug manufacturer and the Thomas County, Georgia pharmacist who sold the prescription drug to the decedent. Suit was filed in Leon County. We held "a pharmacist who fills a prescription in a foreign state and delivers it to the recipient in that state cannot reasonably be said to have purposefully availed himself of the privilege of conducting activities within the foreign state thus invoking the benefits and protections of the forum state's laws." (Emphasis in original.) (350 So.2d, p. 129.) The pharmacist was found not to have the requisite contacts with the State of Florida to satisfy due process requirements of International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

In International Shoe, a foreign corporation employed salesmen within the state of Washington to solicit orders from prospective buyers. The salesmen took orders and transmitted them to company headquarters, where the orders were approved and shipped F.O.B. from points outside Washington. No salesman had authority to enter into contracts or to make collections. All salesmen were paid by commission. The question was whether the foreign corporation was subject to suit by the state for the collection of unemployment compensation taxes. As we noted in Dunn, the presence of a defendant within the territorial jurisdiction of a court was historically a prerequisite to the rendition of a judgment personally binding him. But with the advent of personal service of summons, a defendant need not be present within the territory of the forum but need only have certain minimal contacts "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " 326 U.S. at 316, 66 S.Ct. at 158. The Supreme Court found sufficient activity by the foreign corporation within the state of Washington to determine that due process requirements of minimal contacts were satisfied. The Court could not prescribe, however, a simple formula, saying:

"It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. . . . Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or a corporate defendant with which the state has no contact, ties, or relations." International Shoe at 319, 66 S.Ct. at 159.

Hanson v. Denckla, supra, considered the amenability of a Delaware trust company to suit in Florida. The company was trustee of certain securities for a woman who executed her revocable deed of trust in Delaware. She subsequently moved to Florida, where she executed her will and an inter vivos instrument distributing a portion of the trust. An action was brought in Florida for a declaratory judgment to determine what property passed under the residuary clause of her will. The Delaware trust company was served in Florida by publication. The Florida Supreme Court held the trust and power of appointment executed in Delaware were ineffective under Florida law, but the United States Supreme Court reversed, holding Florida lacked in rem or in personam jurisdiction over the Delaware trust company. In discussing personal jurisdiction, the Supreme Court found no contacts at all between the company and Florida. The company had no office in Florida and transacted or solicited no business either in person or by mail. The Court found "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Id., 357 U.S. at page 253, 78 S.Ct. at page 1240.

Not raised in our opinion in Dunn, nor specifically ruled upon, was the constitutionality of the long-arm statute as...