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Southern Wall Products, Inc. v. Bolin

Florida Court of Appeals, Fourth District

July 25, 2018


         Not final until disposition of timely filed motion for rehearing.

          Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No. 17-018220CA27.

          Walter G. Latimer, Bruno Renda and Noor Fawzy of McGivney, Kluger & Cook, P.C., Fort Lauderdale, for appellant.

          Rebecca S. Vinocur of Rebecca S. Vinocur, P.A., Coral Gables, for appellees Steven Bolin and Deborah Bolin.

          Warner, J.

         Southern Wall Products appeals the trial court's order denying its motion to dismiss for lack of personal jurisdiction in this products liability action. Because the record shows the lack of minimum contacts to support specific personal jurisdiction, we reverse.

         The appellees, Steven and Deborah Bolin, filed a 2017 products liability lawsuit in Broward Circuit Court against multiple defendants, including SWP. They alleged in their amended complaint that Steven Bolin was exposed to asbestos-containing products over a period of years, between 1969 and 1981, at numerous job sites in Florida. They claimed that as a result, he contracted mesothelioma.

         In their complaint, they alleged jurisdiction against all defendants based on numerous allegations of conducting business in Florida, including that: 1) the defendants conducted business or had offices within the state; 2) the plaintiffs' cause of action arose out of the defendants' business ventures within the state; 3) the defendants' asbestos-containing materials were sold in Florida and Steven Bolin used them in Florida; 4) the defendants engaged in nationwide marketing and specifically targeted Florida for their asbestos-containing products; 5) the defendants conducted substantial and not isolated activities within the state; and 6) the defendants maintained agents for service of process within the state. The plaintiffs also alleged that the defendants received substantial revenues from the sale of products in Florida at all times material to the cause of action.

         Specific to SWP, the complaint stated that Steven Bolin was exposed to a joint compound in Florida from SWP in 1975-1977 while working as a laborer or construction worker for a company in Clearwater, Florida.

         SWP moved to dismiss for lack of personal jurisdiction. It attached an affidavit of its bookkeeper, averring that SWP, a corporation with its principal place of business in Tucker, Georgia, had never maintained any office or physical presence in Florida, and that neither did its predecessor, Ruco of Atlanta, Inc., also a Georgia corporation. During the 1970s, Ruco's sales were centralized in Georgia, and neither SWP nor Ruco marketed or sold any product in Florida.

         To counter the motion to dismiss, the Bolins filed a response, quoting from Steven Bolin's deposition that he had used an asbestos-containing joint compound in 1977 while working as a laborer and that one of them was named Ruco. The response also quoted from a deposition of Richard Whitcomb for SWP, who said SWP was currently distributing its product in Florida at the time of his deposition, which was in 2017. Approximately twenty percent of SWP's sales are made in Florida. The Bolins argued that SWP had continuous contacts and sales in Florida of asbestos-containing products and that SWP is subject to specific personal jurisdiction pursuant to section 48.193, Florida Statutes (2014).

         The trial court held a non-evidentiary hearing on the motion to dismiss. Counsel for the Bolins declared that they were alleging specific personal jurisdiction against SWP, not general jurisdiction. The court questioned whether the fact that SWP was doing business in Florida at the time of the hearing, decades after the exposure, would support finding personal jurisdiction over SWP now. SWP objected, arguing that at the time of the alleged Florida exposure, SWP did not do business in Florida. The trial court entered an order denying the motion to dismiss, prompting this appeal.

         For a Florida court to have jurisdiction over a defendant under the long-arm statute, courts must apply a two-prong analysis. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). The court first determines whether the facts as pleaded were sufficient to support personal jurisdiction under the long-arm statute, section 48.193, Florida Statutes. Id. Secondly, if the first requirement is met, it determines "whether the federal constitutional due process requirements of minimum contacts have been met." Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002); Woods v. Nova Co. Belize Ltd., 739 So.2d 617, 619-20 (Fla. 4th DCA 1999).

         If the plaintiff has sufficiently alleged a basis for long-arm jurisdiction, then the burden shifts to the defendant to contest those allegations, by affidavit or other proof, or to claim that the federal minimum contacts requirement is not met, by affidavit or other verified evidence. See Venetian Salami, 554 So.2d at 502. If adequately contested, then the burden shifts back to ...

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