Robinson v. International Industries, Ltd., Inc.
| Decision Date | 07 April 1981 |
| Docket Number | No. 226-80,226-80 |
| Citation | 430 A.2d 457,139 Vt. 444 |
| Court | Vermont Supreme Court |
| Parties | Paul ROBINSON v. INTERNATIONAL INDUSTRIES LIMITED, INC., and Forenta, Inc. |
Donald Arbitblit of Langrock, Sperry, Parker & Stahl, Middlebury, for plaintiff.
Lynch & Foley, Middlebury, for defendants.
Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.
By his amended complaint the plaintiff, a Vermont dealer and distributor, sought damages essentially contractual in nature from his Florida supplier, International Industries Limited, Inc. He also joined Forenta, Inc., a Delaware corporation manufacturing in Tennessee the product complained of as defective, and Carlisle Corporation, a Pennsylvania corporation which supplied for the product tires claimed to be defective. The product claimed defective was a Hand-I-Tow towing unit, several of which were purchased by plaintiff from International, and by International's direction shipped directly, prepaid, from Forenta's Tennessee factory to the plaintiff in Vermont. International was never served with process, and Carlisle entered into an out-of-court settlement resulting in its dismissal, so that only the claim against Forenta, Inc. is still in litigation. That claim, on motion, was dismissed by the trial court for lack of jurisdiction. This appeal challenges that dismissal.
Although the trial court made no findings of fact, a practice not to be encouraged in the type of ruling involved here, an affidavit of Forenta's president and general manager as to the material facts is apparently undisputed. We can, therefore, dispose of the issues presented. State v. Murray, 134 Vt. 115, 116, 353 A.2d 351, 353 (1976).
The essential facts are as follows. The units in question, designed for use in lifting and towing other vehicles behind a car or truck, were allegedly far short of their represented and warranted weight capacity, and thus unfit for their stated purpose. They were ordered by plaintiff, who paid for them, from International in Florida. International, in turn, ordered them from Forenta, the manufacturer, in Tennessee, requesting direct shipment to the plaintiff in Vermont, and paying for them. They were made by Forenta to International's design and specifications. The prepaid shipment was made in Tennessee by common carrier. No other contact with, or activity in, Vermont is ascribed to Forenta, and it is not registered to do business in Vermont.
The principal issue is thus clearly delineated by the parties. With service of process having been effected outside the state upon a foreign corporation, under the provisions of 12 V.S.A. §§ 855, 856, are the contacts of that corporation with Vermont sufficient basis to assert jurisdiction, under the tests mandated by the Due Process Clause of the Fourteenth Amendment? The policy of the statute is, as we have held, to assert such jurisdiction to the full extent permitted by the clause. Bard Building Supply Co. v. United Foam Corp., 137 Vt. 125, 400 A.2d 1023 (1979).
Both parties urged upon the trial court, and upon us, that the decision in Bard is controlling in their favor. In that case we upheld in personam jurisdiction over a Pennsylvania corporation not otherwise doing business in Vermont which accepted by phone from plaintiff an order for merchandise, and shipped the goods C.O.D. to the plaintiff in Vermont. That action also sounded in contract, for claimed defects and resultant financial damage. We reviewed at some length the variety of cases following International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), including Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Further review would serve no useful purpose.
On the facts in Bard we concluded that contract jurisdiction, as well as tort, can be based upon a single act within the state, that the "minimum contacts" requirement had been met, and that defendant had purposefully availed itself of the privilege of conducting activities within Vermont, the forum state. The purposeful commercial act upon which we relied most heavily was the sending of the C.O.D. shipment into Vermont, whereby defendant made the carrier its agent to deliver the goods in Vermont and to collect here the purchase price. That element is absent from this case, and it is a vital distinction. There is here no minimum contact with the State of Vermont. The goods were shipped to Vermont only by direction of their owner, International, and title to the goods passed in Tennessee to the plaintiff. 9A V.S.A. §...
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...or pleading had been served on him in the state. 5 The Court distinguished the facts before it from both Robinson v. International Indus. Ltd., 139 Vt. 444, 430 A.2d 457 (1981) and Carothers v. Vogeler, 148 Vt. 316, 532 A.2d 580 In Robinson, a Vermont resident ordered goods from a supplier ......
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...the place of passage of title and risk of loss relevant to the exercise of personal jurisdiction. See Robinson v. International Indus. Ltd., 139 Vt. 444, 446, 430 A.2d 457 (1981). In Robinson, the court held that one of the reasons that it did not have personal jurisdiction over the defenda......
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...1034 (quoting World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564). Defendant, relying primarily on Robinson v. International Industries Limited, 139 Vt. 444, 430 A.2d 457 (1981), and Carothers v. Vogeler, 148 Vt. 316, 532 A.2d 580 (1987), argues that he does not have the requisite min......
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