Regina Allen Dumachest v. Johnathan J. Allen

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1614

MRS. REGINA ALLEN DUMACHEST AND
MR. CHRISTOPHER ALLEN, INDIVIDUALLY AND
ON BEHALF OF THEIR DECEASED MOTHER,
MRS. THELMA BELLARD ALLEN

VERSUS

MR. JOHNATHAN J. ALLEN AND
CELADON TRUCKING SERVICES, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2005-4629, DIV. A
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, Osward A. Decuir, and James T. Genovese,
Judges.

AFFIRMED.

Dr. Edward A. Robinson, III
Mark E. Robinson
Law Offices of Dr. Edward A. Robinson, III
600 North Foster Drive
Baton Rouge, Louisiana 70806
(225) 928-7876
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Mrs. Regina Allen Dumachest and
Mr. Christopher Allen, individually and
on behalf of their deceased mother,
Mrs. Thelma Bellard Allen

James A. Burton
M. Davis Ready
Shannon H. Huber
Simon, Peragine, Smith & Redfearn, L.L.P.
1100 Poydras Street, 30th Floor
New Orleans, Louisiana 70163-3000
(504) 569-2030
COUNSEL FOR DEFENDANT/APPELLEE:
Celadon Trucking Services, Inc.

Patrick S. McGoey
Andrea V. Timpa
Schonekas, Winsberg, Evans & McGoey, L.L.C.
400 Poydras Street, Suite 1440
New Orleans, Louisiana 70130
(504) 680-6050
COUNSEL FOR DEFENDANT/APPELLEE:
Johnathan J. Allen

GENOVESE, Judge.

Plaintiffs, Regina Allen Dumachest and Christopher Allen, individually and on

behalf of the estate of their deceased mother, Thelma Bellard Allen (Thelma Allen),

appeal the dismissal of their lawsuit against Celadon Trucking Services, Inc.

(Celadon), pursuant to a declinatory exception of lack of personal jurisdiction. For

the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of an alleged one-vehicle accident near Texarkana, Texas,

on January 12, 2005. Plaintiffs allege that their mother, Thelma Allen, a Louisiana

resident, was a guest passenger in an eighteen-wheeler combination truck and trailer

owned by Defendant, Celadon, and driven by its employee, Johnathan Allen,1

likewise made a Defendant herein. Thelma Allen allegedly injured her left, lower leg

and ankle when she fell from the bed of the truck’s cab onto the floor of the cab when

Johnathan Allen (her son) abruptly swerved and applied his brakes in a successful

effort to allegedly avoid a collision with another vehicle. Thelma Allen, a diabetic,

initially sought treatment for the injuries to her left, lower leg and ankle in Texarkana,

Texas; however, Plaintiffs allege that Thelma Allen was denied further treatment for

her worsening condition by Johnathan Allen until after their return to Lafayette,

Louisiana, on January 23, 2005. When Thelma Allen sought treatment at the

emergency room of the Lafayette General Medical Center, the injuries to her leg and

ankle had progressed into a serious bone infection. After an unsuccessful attempt to

treat her bone infection, an amputation of Thelma Allen’s left foot and ankle was

performed on January 24, 2005. A second surgery was performed on February 1,

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Defendant, Johnathan Allen, is Thelma Allen’s son and Plaintiffs’ brother.

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2005, whereby Thelma Allen’s remaining left leg, below her knee, was also

amputated. On March 29, 2005, Thelma Allen died after suffering cardiopulmonary

arrest at her home.

Plaintiffs filed survival and wrongful death claims against Celadon and

Johnathan Allen, alleging that Thelma Allen’s injuries and subsequent death resulted

from the fault of Johnathan Allen. Plaintiffs’ petition asserts that Thelma Allen lived

with chronic pain from the date of her injury, January 12, 2005, until her untimely

death on March 29, 2005.

Celadon filed a declinatory exception of lack of personal jurisdiction, asserting

that it is incorporated in New Jersey, its principal place of business is in Indiana, and

the alleged accident at issue herein occurred in Texas; therefore, the State of

Louisiana cannot exercise personal jurisdiction over it. The trial court sustained

Celadon’s declinatory exception stating:

There is no specific jurisdictional basis, the accident having -- not
having had [sic] occurred in Louisiana. And there’s no general
jurisdictional basis because Celadon does not have sufficient minimum
contacts with the State of Louisiana in order to support jurisdiction in
personam.
The -- I find that the contacts that Celadon does have with the
State, i.e., the fact that some of their twenty-nine hundred (2,900)
employees reside in Louisiana and some of the driver-owned trucks are
even garaged here is a contact. Celadon drivers get tickets in Louisiana,
but I find that those contacts are coincidental and occur nationwide, and
really don’t have anything to do with Celadon particularly seeking out
Louisiana as a place to do business. It’s just that they’re a nationwide
company whose trucks roll through the state of Louisiana. It’d certainly
be a different result if the accident had occurred in Louisiana. Then
you’d have a specific jurisdictional basis. But in this case I find no basis
for in personam jurisdiction against Celadon.

A judgment was signed by the trial court on February 23, 2006, sustaining

Celadon’s declinatory exception of lack of personal jurisdiction and dismissing all of

Plaintiffs’ claims against Celadon.

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ISSUE

The sole issue presented in this appeal is whether Celadon’s contacts with the

State of Louisiana were sufficient to confer personal jurisdiction over it in the State

of Louisiana.

STANDARD OF REVIEW

“An appellate court conducts a de novo review of the legal issue of personal

jurisdiction over a nonresident by a Louisiana court. However, the trial court’s

factual findings underlying the decision are reviewed under the manifest-error

standard of review.” Peters v. Alpharetta Spa, L.L.C., 04-979, pp. 3-4 (La.App. 1 Cir.

5/6/05), 915 So.2d 908, 910 (citations omitted).

LAW AND DISCUSSION

Louisiana’s long-arm statute, La.R.S. 13:3201, authorizes the exercise of

personal jurisdiction over non-residents by providing, in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident,
who acts directly or by an agent, as to a cause of action arising from any
one of the following activities performed by the nonresident:

(1) Transacting any business in this state.

(2) Contracting to supply services or things in this
state.

(3) Causing injury or damage by an offense or quasi
offense committed through an act or omission in this state.

(4) Causing injury or damage in this state by an
offense or quasi offense committed through an act or
omission outside of this state if he regularly does or solicits
business, or engages in any other persistent course of
conduct, or derives revenue from goods used or consumed
or services rendered in this state.

(5) Having an interest in, using or possessing a real right on
immovable property in this state.

....

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B. In addition to the provisions of Subsection A, a court of this
state may exercise personal jurisdiction over a nonresident on any basis
consistent with the constitution of this state and of the Constitution of
the United States.

Personal Jurisdiction

In Davis v. Dempster, Inc., 00-662 (La.App. 3 Cir. 11/29/00), 790 So.2d 43,

writ denied, 00-3519 (La. 2/9/01), 785 So.2d 830 (citations omitted), this court

discussed the types of personal jurisdiction:

[P]ersonal jurisdiction may be either general or specific. When the suit
arises out of or is related to a defendant’s contacts with the forum state,
the exercise of personal jurisdiction is one of specific jurisdiction.
However, if the exercise of jurisdiction arises in a case not stemming
from the defendant’s contacts with the forum, the exercise of personal
jurisdiction is one of general jurisdiction. When this latter category is
in question, a defendant may be subject to the forum state’s exercise of
personal jurisdiction if contacts with the state are continuous and
systematic.

In de Reyes [v. Marine Management and Consulting, Ltd.], 586
So.2d 103 [(La.1991)], the Louisiana Supreme Court explained that
whether proceeding under a theory of general jurisdiction or one
involving specific jurisdiction, the analysis is the same. Under either
theory, a determination as to whether due process standards have been
met requires a two-part analysis of 1) minimum contacts with the forum
state and 2) consideration of whether maintenance of the suit is
consistent with notions of fair play and substantial justice.

Burden of Proof

The burden of proving minimum contacts with the forum state, for long-arm

statute purposes, is on the party claiming jurisdiction to be proper. Hunt v. Schult

Homes Corp., 94-1592 (La.App. 3 Cir. 5/3/95), 657 So.2d 124. If Plaintiffs are able

to establish that Celadon has had sufficient minimal contacts with Louisiana, then a

presumption arises that assertion of personal jurisdiction by the state court is

reasonable. If Plaintiffs are able to accomplish this, then the burden shifts to Celadon

to prove that the State of Louisiana’s assertion of personal jurisdiction would be

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unreasonable in light of traditional notions of fair play and substantial justice. See

de Reyes, 586 So.2d 103.

Specific Jurisdiction

In their brief to this court, Plaintiffs argue that the State of Louisiana has

specific jurisdiction over Celadon pursuant to La.R.S. 13:3201(A). Plaintiffs assert

that their claims arise from damages which occurred in Louisiana because Celadon’s

employee, Johnathan J. Allen, was acting as Celadon’s agent when he engaged in

tortious conduct. Specifically, Plaintiffs allege:

from the time of the accident in Texarkana on January 12, 2005 until the
decedent was returned to Lafayette, Louisiana for proper medical care,
Celadon through its employee, Johnathan J. Allen, continued to engage
in tortious conduct wrongfully detaining the deceased in the Celadon
vehicle for more than eight (8) days when she required additional
medical attention, thus depriving the deceased of the proper medical
care. All actions performed by Johnathan J. Allen were within the
course and scope of his employment with Celadon. While the defensive
maneuvers employed by Johnathan J. Allen to avoid collision with the
phantom vehicle occurred outside the geographic confines of the State
of Louisiana, some of Allen’s actions in delaying medical treatment of
these actions occurred within the geographic borders of the State of
Louisiana.

Plaintiffs also assert that the State of Louisiana has personal jurisdiction over Celadon

because Celadon contracted with Thelma Allen in Louisiana. Plaintiffs contend that

Celadon subjected itself to personal jurisdiction in the State of Louisiana through

Celadon’s requirement that Thelma Allen execute a “Passenger – Hold Harmless

Agreement” prior to the commencement of her trip with Johnathan J. Allen. Plaintiffs

offered a copy of the agreement that Thelma Allen executed on December 27, 2004

before a notary public in Crowley, Acadia Parish, Louisiana. Therefore, Plaintiffs

argue that Celadon’s contract with Thelma Allen, a Louisiana resident, supports their

contention that Celadon contractually submitted itself to jurisdiction in Louisiana.

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Celadon argues that the action which allegedly caused harm to Thelma Allen

purportedly occurred in Texas, not in Louisiana as La.R.S. 13:3201(A)(3) requires.

Further, Celadon counters Plaintiffs’ assertion that Celadon contractually submitted

itself to Louisiana’s jurisdiction when Thelma Allen signed its “Passenger – Hold

Harmless Agreement.” In its brief to this court, Celadon asserts that to subject it to

personal jurisdiction based solely upon said agreement would, in effect, allow

Plaintiffs “to have it both ways,” since Plaintiffs also dispute the merits of the

contract which, by its terms, bars any recovery by Thelma Allen.

We disagree with Plaintiffs’ contention that Thelma Allen’s execution of

Celadon’s “Passenger – Hold Harmless Agreement” is sufficient to establish a finding

of personal jurisdiction. “An individual’s contract with an out-of-state party alone

cannot establish minimum contacts in the home forum.” A & L Energy, Inc. v.

Pegasus Group, 00-3255, p. 7 (La. 6/29/01), 791 So.2d 1266, 1272. The “Passenger

– Hold Harmless Agreement” contemplates Thelma Allen’s riding as a passenger in

Celadon’s vehicle, to be driven by Celadon’s employee, Johnathan Allen. Said

agreement states, in part:

I do hereby indemnify and otherwise hold harmless, Celadon Trucking
Services, Inc., its officers, employees, agents, and assigns from any and
all liability for claims arising in connection with the operation of the
vehicle. I do further waive any and all rights to claims of any nature,
present and future, as a result of being a passenger in this vehicle.

Even assuming that Thelma Allen’s execution of Celadon’s “Passenger – Hold

Harmless Agreement” meets Plaintiffs’ burden of proving a sufficient minimum

contact with Louisiana, we find that Celadon has met its burden of proving that

assertion of jurisdiction would be unreasonable in light of traditional notions of fair

play and substantial justice.

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General Jurisdiction

Pursuant to La.R.S. 13:3201(B), we must review the facts to determine whether

or not the exercise of personal jurisdiction over Celadon complies with constitutional

due process. Hanks v. Kinetics Group, Inc., 03-1354 (La.App. 3 Cir. 6/2/04), 878

So.2d 782, writs denied, 04-1517, 04-1693 (La. 10/1/04), 883 So.2d 990, 883 So.2d

994 (citing Hallaron v. Jacob’s Eng’g Group, Inc., 02-903 (La.App. 5 Cir. 2/11/03),

839 So.2d 952, writ denied, 03-1844 (La. 10/31/01), 857 So.2d 478). “Due process

requires that in order to subject a nonresident defendant to a personal judgment, the

defendant must have certain minimum contacts with the forum state such that the

maintenance of the suit does not offend traditional notions of fair play and substantial

justice.” Hallaron, 839 So.2d at 954 (citing de Reyes, 586 So.2d 103, and

International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95

(1945)).

As set forth in the affidavit of Celadon’s Corporate Programs Attorney, Dennis

L. Elschide (Elschide), Celadon is a New Jersey corporation with its principal place

of business in Indiana. According to Elschide’s affidavit, executed in November of

2005, Celadon employed approximately 2,900 employees and, of those employees,

only forty-eight, or approximately 1.6%, had Louisiana licenses. Since July 1, 2003,

Celadon had knowledge of 1,965 motor vehicle incidents involving its drivers of

which thirty-one occurred in Louisiana, or approximately 1.5%. Celadon did not

maintain, own, or lease offices or other property in Louisiana. Celadon did not have

trucks garaged in Louisiana. Celadon had no offices in Louisiana, and Celadon did

not advertise in publications which specifically targeted Louisiana.

After a careful de novo review of the record, facts, and circumstances in this

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case, we find that Celadon’s contacts with the State of Louisiana are insufficient for

the State of Louisiana to exercise jurisdiction over it. We opine that the agreement

executed by Thelma Allen upon which Plaintiffs rely to establish jurisdiction in the

State of Louisiana is not sufficient to satisfy the constitutional minimum contacts test.

The accident at issue herein did not occur in Louisiana, nor does Celadon conduct its

business in Louisiana; therefore, it could not reasonably expect to be sued in the State

of Louisiana, or defend itself in a Louisiana court. To subject Celadon to personal

jurisdiction in the State of Louisiana would offend traditional notions of fair play and

substantial justice. Therefore, under the minimum contacts analysis, and considering

the facts in this case and applicable law, we agree with the trial court’s finding that

a sufficient basis does not exist to subject Celadon to personal jurisdiction in the State

of Louisiana.

DECREE

Accordingly, the judgment of the trial court sustaining Celadon’s declinatory

exception raising the objection of lack of personal jurisdiction is hereby affirmed.

Plaintiffs, Regina Allen Dumachest and Christopher Allen, individually and on behalf

of the estate of their deceased mother, Thelma Bellard Allen, are assessed with all

costs of this appeal.

AFFIRMED.

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