Swank v. Terex Utilities, Inc.
| Decision Date | 30 September 2015 |
| Docket Number | A152465.,101027 |
| Parties | Randy A. SWANK, Plaintiff–Appellant, v. TEREX UTILITIES, INC., an Oregon corporation, Defendant, Manitex, Inc., a foreign corporation, Defendant–Respondent. |
| Court | Oregon Court of Appeals |
W. Eugene Hallmanargued the cause and filed the briefs for appellant.
Janis C. Puracalargued the cause for respondent. On the brief were Ronald J. Clark, Stephen F. Deatherage, and Bullivant Houser Bailey PC.
Plaintiff was injured while working for his employer, ES & A Sign and Awning Company (ES & A), when the boom of a crane, along with the basket in which plaintiff was riding, fell due to the failure of the crane's rotator-bearing assembly. Plaintiff brought an action against defendant Manitex, Inc., a Texas corporation, claiming that Manitex was negligent in several respects in conducting a “field campaign” to address a defect in the crane's rotator-bearing assembly, which resulted in ES & A failing to properly repair the defect.1After raising the defense of lack of personal jurisdiction under Oregon's long-arm rule, ORCP 4, Manitex brought a motion for summary judgment on that issue, which the trial court granted. Because we conclude that the trial court has personal jurisdiction over Manitex under ORCP 4D based on the field campaign that Manitex conducted in the forums in which the affected cranes were located, including in Oregon, we reverse and remand.
In determining whether an Oregon court has long-arm jurisdiction over a nonresident defendant, we look to ORCP 4.2
State ex rel. Circus Circus Reno, Inc. v. Pope,317 Or. 151, 153, 854 P.2d 461 (1993). Personal jurisdiction may be “general” under ORCP 4A, “specific” under one of the provisions in ORCP 4B though K, or “specific” under the “catchall” provision of ORCP 4L. O'Neil v. Martin,258 Or.App. 819, 829, 312 P.3d 538 (2013), rev. den.,355 Or. 381, 328 P.3d 697 (2014)(citing Circus Circus,317 Or. at 154–56, 854 P.2d 461). Plaintiff had the burden of pleading and proving facts sufficient to establish personal jurisdiction over Manitex. See, e.g., Nike USA, Inc. v. Pro Sports Wear, Inc.,208 Or.App. 531, 533, 145 P.3d 321 (2006). The record on Manitex's motion for summary judgment includes the parties' pleadings and the evidence that the parties submitted to the trial court. In reviewing a trial court's dismissal of a complaint against a defendant for lack of personal jurisdiction, “we construe the pleadings and affidavits liberally in favor of jurisdiction.”Id.at 536, 145 P.3d 321. Once the historical jurisdictional facts are established, or when, as here, the historical facts are undisputed, we review for legal error the trial court's determination whether those facts establish personal jurisdiction over the defendant. Id.The undisputed jurisdictional facts in the record in this case are as follows.
Manitex is a Texas corporation with its principal place of business in Texas. Manitex has never had an office in Oregon, nor had it owned any property in Oregon before plaintiff sustained his injury in May 2008. Manitex has stated in promotional materials that its “Manitex subsidiary manufactures and markets a comprehensive line of boom trucks and sign cranes through a national and international dealership network.” Since March 2011, Coast Crane, which is located in Oregon, has been Manitex's dealer for Oregon. Before that time, Manitex did not have a dealer for Oregon, and an Oregon customer would have been directed to Manitex's dealers in Washington or California. Manitex maintains a website that includes a “locate a dealer” page that provides contact information for dealers servicing a state, including Oregon, or for the nearest dealer if there is not a designated dealer for the state.
In 2008, Manitex had three invoices and one credit memorandum related to Oregon, with total sales of $6,248. In 2009, Manitex had two Oregon transactions totaling $918. In 2010, there were 51 transactions totaling $32,911. One of Manitex's 2010 sales was to ES & A and was directly shipped to ES & A. Manitex's warranty log indicated that, as of June 2011, 14 of its cranes were owned and located in Oregon; however, the owners of those cranes had not purchased the cranes directly from Manitex. Terex Utilities, Inc.,3a company that performed maintenance and repair work on ES & A's crane, had in the past ordered parts from Manitex, either through Manitex's Oregon dealer or directly from Manitex.
The crane at issue in this case—a Phoenix SkyHoist SX57—was manufactured by Phoenix Corporation. ES & A had purchased the crane from a company named SignArt. SignArt is located in Michigan, but it had a branch office in Portland, Oregon, where it used the crane. When SignArt decided to close its Portland office, it sold its Oregon crane to ES & A.
In 2003, Manitex SkyCrane, LLC, a subsidiary of Manitex, purchased certain assets of Phoenix, including the SX57 crane line. After purchasing those assets, Manitex learned of incidents in which SX57 cranes were “coming undecked”—that is, the joint of the pedestal to the turret would come apart and cause an uncontrolled fall. Manitex then undertook a “field campaign” to identify the location of the affected cranes and to require current owners to make “mandatory” inspections of the rotation bolts.
First, Manitex used data from Phoenix to create an initial registry of owners of the SX57 cranes potentially affected by the identified defect. Then, in November 2003, Manitex sent out a first advisory bulletin directed to “[a]ll SX57 Owners with units built before January 1999.”
The bulletin told owners that they “must” inspect the rotation bolts on their crane as instructed in the attached “SX57 Rotation Bearing Fastener Inspection Document,” return the attached “Rotation Bolt Inspection Report” to Manitex, and, if any bolts were broken or missing, take the crane out of service and contact Manitex. The bulletin further instructed, “If you have sold this unit you must complete Section II and forward owner information on the ‘Rotation Bolt Inspection Report.’ ” Manitex's former general manager and president, Rolston, testified that the purpose of the report was to obtain owner information if the crane had been sold and to instruct owners to replace missing bolts, if any. If the returned inspection report showed no issues, then Manitex did not follow up because the original bulletin advised regular inspection.
About a year and one half later, in March 2005, Manitex sent a second advisory bulletin to the same registry of owners, after it had designed a retrofit of the pedestal base for the SX57 crane. That bulletin was also addressed to “ALL SX57 OWNERS WITH UNITS BUILT BEFORE JANUARY 1999” and advised, in part, as follows:
(Underscoring and boldface in original; emphases added.) The bulletin also included a list of several contact people at Manitex, along with their phone numbers and email addresses. Rolston testified that, on receipt of the worksheet, if the crane came within a category that required a retrofit, then Manitex would advise the owner to replace the pedestal as set forth in the bulletin.
In April 2005, SignArt, the prior owner of ES & A's SX57 crane, faxed both of the Manitex bulletins and their attachments to ES & A. In response, also in April 2005, Hauer from ES & A sent an email to Wells, who was listed as a contact person at Manitex in both bulletins, advising him that the subject crane had been at Terex in 2004 for “turret bearing replacement and rotator adjustments” and asking him whether Manitex needed additional information with regard to the field campaign. In May 2005, Hauer also faxed to Wells the Rotation Bolt Inspection Report for the crane, as requested by Manitex in both the first and second advisory bulletins, advising Manitex that ES & A was the current owner of the crane and that no bolts were missing. Neither Wells nor anyone else from Manitex contacted ES & A in response to Hauer's email or inspection report. As a result, ES & A was not advised by Manitex whether a retrofit was necessary or, if it was, which model of retrofit kit to purchase and install.
On May 29, 2008, plaintiff was injured when ES & A's SX57 crane boom fell while plaintiff was in the basket. After the accident, Manitex began communicating with ES & A and requested more information about the accident. Manitex also emailed to ES & A “the original bulletin and form that was sent out in March of 2005” and requested that ES & A fill it out and return it. Manitex also sought to get in touch with Terex to provide support to get the crane back...
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