Northern Propane Gas Co. v. Kipps, 2

• Decision Date: 10 July 1980
• Docket Number: CA-CIV,No. 2,2
• Citation: 127 Ariz. 538,622 P.2d 485
• Parties: NORTHERN PROPANE GAS COMPANY, a Foreign Corporation, Petitioner, v. The Honorable Gordon S. KIPPS, Court Commissioner and Acting Judge of Pima County Superior Court, Respondent, and Neil P. Isaacson, a single man; Michael R. Strucel, a single man; Thomas Williams and Deborah Williams, husband and wife, Respondents-Real Parties in Interest. 3644.
• Court: Arizona Court of Appeals

Page 485

622 P.2d 485

127 Ariz. 538

NORTHERN PROPANE GAS COMPANY, a Foreign Corporation, Petitioner, v. The Honorable Gordon S. KIPPS, Court Commissioner and Acting Judge of Pima County Superior Court, Respondent, and Neil P. Isaacson, a single man; Michael R. Strucel, a single man; Thomas Williams and Deborah Williams, husband and wife, Respondents-Real Parties in Interest.

No. 2 CA-CIV 3644.

Court of Appeals of Arizona, Division 2.

July 10, 1980.

Rehearing Denied Sept. 5, 1980.

Review Granted Sept. 30, 1980.

Lesher, Kimble & Rucker, P. C. by Darwin J. Nelson, Tucson, for petitioner.

Molloy, Jones, Donahue, Trachta, Childers & Mallamo, P. C. by John F. Molloy, Tucson, for respondents-real parties in interest.

OPINION

RICHMOND, Judge.

Petitioner has brought this special action to challenge the respondent court's denial of its motion for rehearing on a motion to dismiss for lack of personal jurisdiction. The denial of a motion to dismiss is a non-appealable order. Engle Brothers, Inc. v. Superior Court in and for the County of Pima, 23 Ariz.App. 406, 533 P.2d 714 (1975). We assume jurisdiction and grant relief.

Petitioner is a defendant in an action awaiting trial in Pima County Superior Court. Respondents/real parties in interest Isaacson and Strucel are Michigan residents who were injured in Arizona. Real parties in interest Williams are Arizona residents. Petitioner is a foreign corporation which allegedly caused an event to occur in Arizona. On May 1, 1979, this court considered another special action filed by petitioner and declined to accept jurisdiction. Since that denial, however, the Supreme Court of the United States has issued its opinion in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The question before us is what effect that case has on the criteria for personal jurisdiction over a nonresident defendant established in Arizona by Phillips v. Anchor Hocking Glass Corp., 100 Ariz. 251, 413 P.2d 732 (1966).

In January 1978 Issacson and Strucel decided to visit Thomas Williams in Tucson. The propane tanks in Issacson's motor home were filled at a Northern Propane Gas Company retail outlet located on an interstate highway in Michigan. Petitioner's employee was told that the motor home would be traveling to Arizona. On January 14, while the motor home was parked at a camp site in Pima County, there was an explosion and Isaacson, Strucel, and Thomas Williams were injured. They contend the explosion occurred because one of the propane tanks had been overfilled by petitioner's employee in Michigan.

There is no evidence that petitioner has any contact with the State of Arizona other than the foreseeability of this accident. Affidavits submitted by petitioner to the respondent court establish that petitioner transacts no business in Arizona, maintains no office or agents in Arizona, owns no property in Arizona, performs no services nor distributes any product in Arizona, neither sells to others who do business in Arizona nor earns any revenue directly or indirectly from sales in Arizona.

Real parties in interest, relying on Anchor Hocking, argue that (1) petitioner is a large corporation doing business in approximately 25 states, including New Mexico, in contrast to the regionally-limited business activities of the defendants in World-Wide Volkswagen; (2) one of...