Noll v. Am. Biltrite, Inc.
| Decision Date | 29 June 2015 |
| Docket Number | No. 71345–1–I.,71345–1–I. |
| Citation | 188 Wash.App. 572,355 P.3d 279 |
| Parties | Candance NOLL, individually and as Personal Representative of the Estate of Donald Noll, Deceased, Appellant, v. AMERICAN BILTRITE, INC.; Ametek, Inc.; Bird Incorporated; Borgwarner Morse Tec, Inc., as successor-by-merger to Borgwarner Corporation; CBS corporation, a Delaware corporation, f/k/a Viacom Inc., successor by merger to CBS CORPORATION, a Pennsylvania corporation, f/k/a Westinghouse Electric Corporation; Certain Teed Corporation; Conwed Corporation; Domco Products Texas Inc. ; Ford Motor Company; General Electric Company; Georgia–Pacific, LLC; Hercules Incorporated; Honeywell International, Inc.; Industrial Holdings Corporation, f/k/a The Carborundum Company; Ingersoll–Rand Company; J–M Manufacturing Company, Inc.; Kaiser Gypsum Company, Inc. ; Kelly Moore Paint Company, Inc.; Saberhagen Holdings, Inc.; Simpson Lumber Company, LLC; Simpson Timber Company; Defendants. Special Electric Company, Inc., Respondent. |
| Court | Washington Court of Appeals |
Brian D. Weinstein, Benjamin Robert Couture, Weinstein Couture PLLC, Seattle, WA, William Kohlburn, St. Louis, MO, Ryan Kiwala, Alton, IL, for Appellant.
Melissa Kay Roeder, Foley Mansfield, Sarah Stephens Visbeek, Forsberg & Umlauf, Michael Barr King, Justin Price Wade, Carney Badley Spellman PS, Seattle, WA, for Respondent.
¶ 1 A Washington court may exercise specific personal jurisdiction over the nonresident supplier of raw asbestos used as a component of asbestos-cement pipe when the pipe, manufactured in California, enters the stream of commerce and is sold on a regular basis to buyers in Washington. The defendant supplier in this case did not specifically target Washington as a destination for its product and may not have actually known that its asbestos was ending up in Washington as a component of pipe. Nevertheless, the regular course of sales that brought the pipe into Washington satisfies the due process requirement for minimum contacts because it shows that the defendant purposefully availed itself of the protection of Washington's laws.
¶ 2 This appeal arises from Donald Noll's death caused by malignant pleural mesothelioma. Donald Noll died in 2013. Candance Noll is the representative of his estate. She alleges that Donald's mesothelioma developed due to his exposure to asbestos when he worked for a construction company in Port Orchard between 1977 and 1979. Before he died, Donald Noll testified that he was exposed to asbestos-cement dust on the job when he cut asbestos-cement pipe manufactured by the CertainTeed Corporation.
¶ 3 Candance Noll's complaint sought damages against CertainTeed, Special Electric Company Inc., and other defendants. The only defendant that is a party to this appeal is respondent Special Electric, a shell corporation. Special Electric has financial responsibility for the conduct of Special Materials, an asbestos broker that is now defunct. See Melendrez v. Superior Court, 215 Cal.App.4th 1343, 1346–48, 1355–56, 156 Cal.Rptr.3d 335, review denied, No. S211282 (Sup.Ct. July 17, 2013) (). For purposes of this appeal, we refer to Special Electric and the companies for which it has financial responsibility simply as “Special.”
¶ 4 At all relevant times, Special was a Wisconsin corporation with its principal place of business in Milwaukee, Wisconsin. Special maintained offices and staff in as many as eight different states to sell and help facilitate the delivery of asbestos. It did not keep an office or staff in Washington.
¶ 5 Noll's complaint asserted specific personal jurisdiction over Special in King County under Washington's long-arm statute, RCW 4.28.185(1). Special entered a limited appearance and attended Donald Noll's preservation depositions in April 2013.
¶ 6 Special then moved to dismiss under CR 12(b)(2).1 Noll opposed the motion, presenting as the sole issue whether Washington courts may exercise specific personal jurisdiction over Special under the stream-of-commerce doctrine. The trial court dismissed Noll's complaint, citing J. McIntyre Machinery, Ltd. v. Nicastro, ––– U.S. ––––, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011). Noll appeals.
¶ 7 When proceeding under CR 12(b)(2), we treat the allegations in the complaint as established. If the trial court considers materials outside the pleadings, as it did here, we review its decision under the de novo standard of summary judgment, taking all factual inferences in favor of the plaintiff. State v. AU Optronics. Corp., 180 Wash.App. 903, 920–25, 328 P.3d 919 (2014).
¶ 8 Reviewed in this light, the record shows that Special supplied asbestos to a CertainTeed manufacturing plant in Santa Clara, California. CertainTeed used the asbestos to make pipe that it shipped into Washington in substantial quantities. According to shipping invoices, the Santa Clara plant sent at least 55,000 linear feet of asbestos-cement pipe to buyers in Washington between 1977 and 1979, through at least 31 discrete shipments.
¶ 9 During that time period, Special supplied approximately 95 percent of the asbestos used at CertainTeed's Santa Clara plant to manufacture asbestos-cement pipe. In December 1977, Special contracted to supply CertainTeed's pipe division with approximately 4,000 tons of blue asbestos per year from 1978 until 1983. The contract is acknowledged in a letter from General Mining, a mining company in South Africa, agreeing to make that amount of blue asbestos available to Special for distribution to CertainTeed. Special arranged for 1,018 tons of blue asbestos obtained from General Mining to be delivered to CertainTeed's Santa Clara plant between 1977 and 1979.
¶ 10 In short, Special regularly supplied raw asbestos for the manufacture of pipe that moved into Washington through established channels of sale. The issue is whether such conduct Is enough to permit a Washington court to exercise specific personal jurisdiction over Special, a nonresident defendant.
¶ 11 A court may exercise specific personal jurisdiction over a nonresident based on much more limited contacts with a forum state than would be required for the exercise of general personal jurisdiction. But specific jurisdiction extends only to causes of action that arise out of those limited contacts. AU Optronics, 180 Wash.App. at 913, 328 P.3d 919. Washington courts may exercise specific jurisdiction over an out-of-state defendant if authorized by our long-arm statute, RCW 4.28.185(1), and if doing so is consistent with due process. Our long-arm statute is designed to be coextensive with federal due process. Failla v. FixtureOne Corp., 181 Wash.2d 642, 650, 336 P.3d 1112 (2014). cert. denied, ––– U.S. ––––, 135 S.Ct. 1904, 191 L.Ed.2d 765 (2015).
¶ 12 A state court's assertion of jurisdiction is subject to review for compatibility with the Fourteenth Amendment's Due Process Clause because it exposes defendants to that state's coercive power. Goodyear Dunlop Tires Operations, S.A. v. Brown, ––– U.S. ––––, 131 S.Ct. 2846, 2850, 180 L.Ed.2d 796 (2011). The maintenance of the suit will not offend traditional notions of fair play and substantial justice so long as the defendant has “certain minimum contacts” with the forum that is asserting jurisdiction. Int'l Shoe Co. v. State of Wash., 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). As a general rule, the sovereign's exercise of power requires 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.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). This principle “gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.” World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ; accord Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
¶ 13 A three prong test is used to determine whether the federal due process clause is satisfied. Specific jurisdiction comports with federal due process so long as (1) purposeful “minimum contacts” exist between the defendant and the forum state; (2) the plaintiff's injuries arise out of or relate to those minimum contacts; and (3) the exercise of jurisdiction will be reasonable, that is, it will be consistent with notions of fair play and substantial justice. AU Optronics, 180 Wash.App. at 914, 328 P.3d 919. If a plaintiff satisfies the first two prongs, the burden shifts to the defendant to set forth a compelling case that the exercise of jurisdiction would not be reasonable. AU Optronics, 180 Wash.App. at 914–15, 328 P.3d 919.
¶ 14 At issue in the present case is the first prong, that is, whether Special “purposefully established” minimum contacts with Washington. Burger King, 471 U.S. at 474, 105 S.Ct. 2174. Defendants may not be haled into Washington solely as the result of contacts that are random, fortuitous, or attenuated. Burger King, 471 U.S. at 475, 105 S.Ct. 2174. Noll must show either that Special's activities constituted purposeful availment of Washington's laws or purposeful direction toward Washington. AU Optronics, 180 Wash.App. at 915, 328 P.3d 919.
¶ 15 Noll relies on the stream-of-commerce doctrine to prove purposeful availment. “The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” World–Wide Volkswagen Corp., 444 U.S. at 297–98, 100 S.Ct. 559. Cases utilizing the stream-of-commerce doctrine as the basis for long-arm jurisdiction are numerous. The limits of the doctrine were...
To continue reading
Request your trial
-
Noll v. Am. Biltrite Inc.
...Noll had alleged sufficient facts for the trial court to exercise specific personal jurisdiction over Special. Noll v. Am. Biltrite, Inc., 188 Wash.App. 572, 355 P.3d 279 (2015). According to the Court of Appeals, the record shows that Special supplied approximately 95 percent of the asbest......