Nicolet, Inc. v. Benton

• Decision Date: 09 April 1985
• Docket Number: BA-276,BA-275,BA-308,Nos. BA-273,BA-274,BA-277,s. BA-273
• Citation: 467 So.2d 1046,10 Fla. L. Weekly 890
• Parties: 10 Fla. L. Weekly 890 NICOLET, INC., Appellant, v. Edward C. BENTON & Annie M. Benton, his wife, Appellees. NICOLET, INC., Appellant, v. James H. WOOD, Sr. & Mary Jo Wood, his wife, Appellees. NICOLET, INC., Appellant, v. Thomas J. LEDDY & Evelyn J. Leddy, his wife, Appellees. NICOLET, INC., Appellant, v. George F. LOZNICKA, Jr. & Lillian Loznicka, his wife, Appellees. NICOLET, INC., Appellant, v. Clifford W. THOMPSON, Appellee. NICOLET, INC., Appellant, v. Robert M. BARSH & Mary Barsh, Appellees.
• Court: Florida District Court of Appeals

Page 1046

467 So.2d 1046

10 Fla. L. Weekly 890

NICOLET, INC., Appellant, v. Edward C. BENTON & Annie M. Benton, his wife, Appellees.

NICOLET, INC., Appellant, v. James H. WOOD, Sr. & Mary Jo Wood, his wife, Appellees.

NICOLET, INC., Appellant, v. Thomas J. LEDDY & Evelyn J. Leddy, his wife, Appellees.

NICOLET, INC., Appellant, v. George F. LOZNICKA, Jr. & Lillian Loznicka, his wife, Appellees.

NICOLET, INC., Appellant, v. Clifford W. THOMPSON, Appellee.

NICOLET, INC., Appellant, v. Robert M. BARSH & Mary Barsh, Appellees.

Nos. BA-273, BA-277, BA-308, BA-274, BA-275, BA-276, BA-277.

District Court of Appeal of Florida,

First District.

April 9, 1985.

Rehearing Denied May 15, 1985.

Samuel H. Lanier of Coker, Myers & Schickel, Jacksonville, for appellant.

Wayne Hogan of Brown, Terrell, Hogan & Ellis, Jacksonville, for appellees.

ERVIN, Chief Judge.

These appeals arise from the entry of non-final interlocutory orders denying appellant's motion to dismiss for lack of personal jurisdiction.

The individual appellees filed personal injury claims against appellant, a nonresident corporation, and others, alleging injury caused by long-standing exposure to products containing asbestos. These claims were consolidated for pre-trial purposes and are consolidated for purposes of this appeal.

Although the six complaints do not specify a sole basis upon which personal jurisdiction is predicated, in the hearing before the trial judge and on appeal, appellees have exclusively relied on Section 48.181(1), Florida Statutes, ¹ to confer personal jurisdiction over the nonresident appellant.

The requisites for service under section 48.181(1) are as follows: First, "a plaintiff must allege sufficient facts that the non-resident defendant was doing business in Florida." Caribe & Panama Investments v. Christensen, 375 So.2d 601, 603 (Fla. 3d DCA 1979) (e.s.). In all their complaints, appellees have alleged that appellant "[o]perated, conducted, engaged in or carried on a business or business venture in this state, or had an office or agency in this state." Here, the complaints allege sufficient facts to support an initial basis for the exercise of personal jurisdiction.

Appellant, however, also argues that in testing the sufficiency of allegations asserting jurisdiction over a nonresident defendant, on the theory that it carried on a business in this state, reference must be made to Florida Rule of Civil Procedure 1.120(f), requiring that "averments of time and place are material...." It argues, among other things, that because the dates of product exposure anteceded the effective date of section 48.181(1), or its predecessor, the statute must be deemed inapplicable as a means of asserting jurisdiction. We disagree. Reliance on rule 1.120(f), as requiring specificity in the dates alleging exposure to asbestos products, was also raised by nonresident defendants in Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984), and in Copeland v. Armstrong Cork Co., 447 So.2d 922 (Fla. 3d DCA 1984), and there rejected. In the former case, the court stated:

[A]ny requirement of pleading a specific time and place of injury would place an insurmountable burden upon a plaintiff. We hold, therefore, that the allegation of a longtime exposure to the alleged defective product, such as asbestos, under these specifically alleged conditions constitutes sufficient ultimate facts of cumulative exposure injury (characterized in Copeland, 447 So.2d 922, as "creeping disease").

447 So.2d at 912-13. The court explained that "allegations of time and place are necessary ... only where their absence renders a pleading so vague and ambiguous that the defendant cannot adequately frame an answer." Id. at 912. We agree and adopt the Copeland analysis to the issue raised.

An additional requirement for service under section 48.181(1) is that a plaintiff must allege "that the cause of action sued upon arose out of such business before jurisdiction attaches under section 48.181(1)." Caribe & Panama Investments, 375 So.2d at 603. This rule was amplified upon in Bloom v. A.H. Pond Co., 519 F.Supp. 1162, 1168 (S.D.Fla.1981), wherein the court stated:

Personal jurisdiction over non-resident defendants in Florida is limited to situations where the cause of action arises from the doing of business in Florida or the cause of action has some other connection to a specified act committed in Florida. This has been described as the "connexity" requirement that must be met before jurisdiction over a nonresident can be sustained. It is clear that doing business in this state is not a sufficient basis, standing alone, upon which to predicate long-arm jurisdiction. There must also be some nexus or connection between the business that is conducted in Florida and the cause of action alleged. This interpretation of the long-arm statutes is supported by both state and federal courts faced with the problem.

(emphasis supplied) (footnotes omitted)

Typically, all the complaints allege the plaintiffs' exposure to products containing asbestos manufactured by appellant's predecessor within a certain time frame. For example, plaintiff Leddy's complaint states:

3. Thomas J. Leddy was exposed to various products containing asbestos while working as a pipe insulator from 1954 to 1974. He was then and there exposed to the effects and results of his and others' work with and around asbestos and asbestos-containing insulation materials which were manufactured, processed, imported, converted, compunded [sic], distributed, sold or otherwise placed into the channels of commerce by the respective defendants.

The only major difference in the six complaints is the time of the six individual plaintiffs' exposure to the products. These allegations by themselves are insufficient to show the nexus or connection between appellant's business that is conducted in Florida and the cause of action alleged. However, appellee Loznicka and Barsh have attached ...