Le Manufacture Francaise Des Pneumatiques Michelin v. District Court In and for Jefferson County

• Decision Date: 08 December 1980
• Docket Number: No. 80SA308,80SA308
• Citation: 620 P.2d 1040
• Parties: LE MANUFACTURE FRANCAISE DES PNEUMATIQUES MICHELIN, a Foreign Corporation, Petitioner, v. The DISTRICT COURT IN AND FOR THE COUNTY OF JEFFERSON, State of Colorado, the Honorable Gaspar Franz Perricone, one of the Judges thereof, Respondent.
• Court: Colorado Supreme Court

Page 1040

620 P.2d 1040

LE MANUFACTURE FRANCAISE DES PNEUMATIQUES MICHELIN, a Foreign Corporation, Petitioner, v. The DISTRICT COURT IN AND FOR THE COUNTY OF JEFFERSON, State

of Colorado, the Honorable Gaspar Franz Perricone,

one of the Judges thereof, Respondent.

No. 80SA308.

Supreme Court of Colorado, En Banc.

Dec. 8, 1980.

White & Steele, P. C., Walter A. Steele, James M. Dieterich, Denver, for petitioner; John M. Kenney, New Hyde Park, N. Y., of counsel.

David L. Kofoed, P. C., Roger T. Castle, Denver, for respondent.

LOHR, Justice.

In this original proceeding, we issued a rule to show cause why the respondent district court should not be prohibited from asserting jurisdiction over the petitioner, Le Manufacture Francaise Des Pneumatiques Michelin, a foreign corporation (Michelin of France), on the grounds that assertion of jurisdiction is not authorized by the Colorado long-arm statute, section 13-1-124(1), C.R.S.1973, and violates due process of law. Finding no statutory or constitutional violation, we now discharge the rule.

Rick and Sheila Mrsny brought an action in Jefferson County district court against Michelin of France for injuries sustained in a one-car accident in Colorado on July 11, 1976, when a tire manufactured by Michelin of France allegedly failed. ¹ Michelin of France moved to dismiss the suit for lack of personal jurisdiction and, after discovery on the issue, a hearing was held. The district court found that jurisdiction could be asserted over the foreign corporation consonant with both the long-arm statute, section 13-1-124(1), C.R.S. 1973, and due process of law. Michelin of France then petitioned this court for relief in the nature of prohibition pursuant to C.A.R. 21.

I.

A plaintiff seeking to establish personal jurisdiction over a defendant upon the basis of the long-arm statute must make a prima facie showing of threshold jurisdiction. Such showing may be established by the allegations of the complaint. Pioneer Astro Industries, Inc. v. District Court, 193 Colo. 409, 566 P.2d 1067 (1977); Alliance Clothing, Ltd. v. District Court, 187 Colo. 400, 532 P.2d 351 (1975); Texair Flyers v. District Court, 180 Colo. 432, 506 P.2d 367 (1973). In order to evaluate whether a prima facie showing of threshold jurisdiction has been established, it is also appropriate to consider evidence adduced at the hearing on a motion to dismiss. Waterval v. District Court, Colo., 620 P.2d 5 (1980).

Here, we glean the facts relevant to the question of jurisdiction from the trial court's order denying Michelin of France's motion to dismiss, and from various affidavits, admissions, and answers to interrogatories which accompany the parties' briefs, as well as from the complaint. ² The record below has not been made part of the record before us.

Michelin of France is a French corporation which engages in the business of manufacturing and selling tires. During the years 1973 through 1978, tires which it manufactured were used in more than one hundred countries in addition to the United States.

Michelin of France has no manufacturing facilities outside of France. It has no facilities of any kind in the United States and owns no property in this country. It does not have an appointed agent for service of process, a bank account, or a telephone listing in the United States. It engages in no advertising of its products in this country.

Since 1951 Michelin of France has sold tires to purchasers having principal places of business in the United States. In the years 1973 through 1978 approximately six to ten percent of the tires manufactured by Michelin of France were sold to Michelin Tire Corporation, a New York corporation (Michelin of New York), and Sears Roebuck and Company, each of which maintained its principal place of business in the United States. Those buyers purchased the tires f.o.b. Michelin of France's plant in France, for eventual resale within the United States. Michelin of France relinquished title and control over the tires upon sale.

Certain tires made and sold by Michelin of France have sidewall markings in English, among other languages, and code numbers required by the United States Department of Transportation (DOT). Tires so marked have been constructed to satisfy relevant United States safety standards. The tire which is the subject of this action has a DOT number on the sidewall. It was reasonably foreseeable that some of the tires manufactured by Michelin of France would be used in Colorado or other parts of the United States.

Michelin of New York also purchases Michelin-brand tires manufactured by other foreign corporations. Such purchases are made f.o.b. Italy and Spain, and the tires are resold in the United States. Beginning in May 1975, Michelin of New York also manufactured Michelin-brand tires in the United States.

Neither Michelin of New York nor Michelin of France owns any of the other's stock. The only connection between these two corporations reflected by the record is their relationship as buyers and seller of Michelin of France tires.

The tire in question did not arrive in Colorado through a typical chain of distribution. Rather, it was one of four new Michelin tires purchased from a German retailer by an American serviceman who installed it on his Fiat automobile. The car subsequently was shipped to the United States and eventually was transferred to a Colorado car dealership in trade for a new vehicle. The plaintiffs purchased the car with the allegedly defective tire from this dealership. The failure of the tire and the ensuing accident occurred in Colorado.

Michelin of France was served with process in France. It does not contend that such service was improper. Instead, that corporation bases its motion to dismiss solely on the contention that the district court may not subject it to jurisdiction in this case consistent with our long-arm statute and due process of law. We disagree.

II.

Before jurisdiction can be asserted over a foreign corporation, its conduct must bring it within the purview of our long-arm statute, section 13-1-124(1), C.R.S. 1973, which provides in pertinent part:

"(1) Engaging in an act enumerated in this section by any person, whether or not a resident of the state of Colorado, either in person or by an agent, submits such person, and, if a natural person his personal representative to the jurisdiction of the courts of this state concerning any cause of action arising from:

"(b) The commission of a tortious act within this state;"

In enacting our long-arm statute, the Colorado legislature intended to extend the jurisdiction of our courts to the fullest extent permitted by the due process clause of the United States Constitution. Waterval v. District Court, supra; Jenner & Block v. District Court, 197 Colo. 184, 590 P.2d 964 (1979); Safari Outfitters v. Superior Court, 167 Colo. 456, 448 P.2d 783 (1969). Conversely, our legislature did not intend that the long-arm statute be construed to permit jurisdiction to be asserted where to do so would violate due process of law. See section 2-4-201(1)(a), C.R.S. 1973.

In Vandermee v. District Court, 164 Colo. 117, 433 P.2d 335 (1967), we held that a person or entity whose allegedly tortious conduct in another state causes injury in this state has committed "a tortious act within this state" for purposes of the long-arm statute. Accord, Jenner & Block v. District Court, supra; Texair Flyers v. District Court, supra; Czarnick v. District Court, 175 Colo. 482, 488 P.2d 562 (1971); see Ferrari v. District Court, 185 Colo. 136, 522 P.2d 105 (1974). Although the subject tire was manufactured in France, the injuries allegedly resulting from that tire's failure occurred in Colorado. Therefore, the "tortious act" standard of the long-arm statute has been satisfied if such a construction of the statute is consistent with due process of law. We now address that constitutional question.

III.

The due process clause of the Fourteenth Amendment to the United States Constitution limits state power over a nonresident defendant by prohibiting the assertion of in personam jurisdiction unless that defendant has "certain minimum contacts with (the forum state) such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945); accord, e. g., McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). As the United States Supreme Court recently stated,

"The concept of minimum contacts ... can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system."

Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490, 498 (1980); see Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); International Shoe Co. v. Washington, supra.

A.

Whether sufficient contacts exist to support jurisdiction over a nonresident defendant depends upon the quality and nature of that defendant's activity in the forum state. Hanson v. Denckla, supra; International Shoe Co. v. Washington, supra. Of primary importance is that the defendant by its conduct "purposely avail(ed) itself of the privilege of conducting activities within (that) state." Hanson v. Denckla, supra, at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298; accord, Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). Such purposeful activity has been found in products liability cases where a manufacturer delivers its products into the stream of commerce with the expectation that they will be...