Nora LaFreniere, Vice President and General Counsel of Otis Elevator Company v. Catherine Craig-Myers, individually and as personal representative of the Estate of Robert Myers ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-1918
_____________________________
NORA LAFRENIERE, Vice
President and General Counsel
of Otis Elevator Company,
Appellant,
v.
CATHERINE CRAIG-MYERS,
Individually and as Personal
Representative of the Estate of
Robert Myers,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.
December 28, 2018
B.L. THOMAS, C.J.
The trial court’s non-final order denied Appellant’s motion to
dismiss the amended complaint. Appellant argues that the
corporate shield doctrine bars the trial court from exercising
personal jurisdiction over a nonresident corporate officer acting in
a corporate capacity, and that the amended complaint fails to
allege a basis for personal jurisdiction under Florida’s long-arm
statute sufficient to pierce that corporate shield. We have
jurisdiction under Florida Rule of Appellate Procedure
9.130(a)(3)(C)(i). We hold that the trial court erred in denying
Appellant’s motion to dismiss, because Appellant was acting in a
corporate capacity at all relevant times, and no valid exception to
the corporate shield doctrine applies in this case.
Robert Myers, an employee of Otis Elevator Company, was
tragically killed while conducting an elevator inspection and
repair. Separate investigations were conducted by the Tallahassee
Police Department and the Occupational Safety and Health
Administration (“OSHA”). OSHA issued four citations to Otis
Elevator Company for regulatory violations classified as “serious.”
Appellee brought a wrongful death action against Otis
Elevator Company and Appellant, alleging that jurisdiction was
invoked pursuant to section 768.16, Florida Statutes, “the Florida
Wrongful Death Act.” Count II of the amended complaint asserted
a “Cause of Action for Wrongful Death Damages Against
[Appellant] Arising From Criminal Acts Exception to Worker’s
Compensation Employer/Manager Immunity Provided in Section
440.11(1)(b)2, Florida Statutes.” Appellee’s amended complaint
alleged that the Occupational Health and Safety Act of 1970
requires elevator owners to have their technicians disable
elevators using “lockout” or “tagout” procedures before
commencing repairs, but that Otis Elevator Company has a policy
of requiring its technicians to enter elevator shafts for up to
15 minutes without disabling or tagging out the elevators. The
amended complaint described prior instances where OSHA issued
citations to Otis Elevator Company for “serious” violations of its
elevator regulations.
The amended complaint further alleged that “in the course
and scope of her employment as General Counsel and as corporate
officer” of Otis Elevator Company, Appellant closely managed,
directed, supervised, monitored and controlled in-house and
retained counsel, including the following alleged actions taken by
legal counsel at Appellant’s express direction:
a. actions purposefully taken to intentionally conceal and
prevent disclosure of the OSHA citations against
Defendant Otis to the public and Otis service technician
employees;
b. actions purposefully taken to contest and appeal OSHA
citations for the intentional benefit of delay, concealment,
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misrepresentation and non-disclosure of the . . . risks of
serious injury and death to Otis service technician
employees from their continued use of the Otis “15
Minute Rule”;
c. actions purposefully taken to contest the OSHA
citations specifically to prevent subsequent issuance by
OSHA of “REPEAT” or “Willful” citations for repeat
conduct in subsequent cases . . . . “Repeat” OSHA
violations are issued for substantially similar violations
occurring within the past three years;
d. actions purposefully taken to conceal from the public
and Otis service technician employees that Otis was
continuously and purposefully subjecting its service
technician employees to continued enforcement of its “15
Minute Rule” with conscious disregard to the . . . risks of
serious injury and death.
The amended complaint further alleged that “in the course
and scope of her employment,” Appellant “did intentionally,
consciously and deliberately aid, abet, counsel, command, induce
and procure Defendant Otis Elevator Company managers,
supervisors, and service technician employees to intentionally and
willfully violate” five OSHA provisions, and that she “consciously
intended to cause and caus[ed] Otis officers, managers, supervisors
and employees to violate” the applicable OSHA regulations.
Appellee alleged that the decedent’s death was a direct and
proximate result of Appellant’s conduct.
Further, Appellee alleged that Otis Elevator Company
intentionally concealed its contributions to the deaths of its
employees and misrepresented to its employees that the previous
deaths were solely attributable to employee error, despite federal
courts having ruled that the company’s policies and 15-minute rule
violated OSHA regulations. Appellee alleged that the company
“told its employees to continue to follow the deadly dangerous Otis
15-minute rule” and “continued to encourage its employees to
intentionally violate OSHA regulations” despite knowing of the
court rulings. These allegations placed the blame squarely on Otis
Elevator Company; Appellant was not mentioned.
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Appellant moved to dismiss the amended complaint for lack of
personal jurisdiction. She attached an affidavit in support of her
motion, attesting that she does not exercise supervisory control
over Otis North America’s local branch offices. She further stated
that although she “may have limited contact on occasion” with Otis
North America’s outside legal counsel, it is the company’s in-house
counsel, not Appellant, who directly supervises and controls
outside legal counsel.
The trial court held a non-evidentiary hearing on Appellant’s
motion to dismiss. Appellant argued that Appellee submitted no
competing evidence as to jurisdiction; Appellee argued that no
competing affidavit or evidentiary hearing was necessary, because
Appellant’s affidavit failed to refute the alleged bases for personal
jurisdiction. The trial court denied Appellant’s motion to dismiss.
This interlocutory appeal follows.
Analysis
An order denying a motion to dismiss for lack of personal
jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So. 2d
1252, 1256 (Fla. 2002). The facts are to be derived “from the
affidavits in support of the motion to dismiss, and the transcripts
and records submitted in opposition to the motion to dismiss.” Id.
at 1254. To determine if personal jurisdiction may be exercised
over a nonresident defendant, “a court must determine whether
sufficient jurisdictional facts are alleged to bring the action within
the ambit of Florida’s long-arm statute.” Kitroser v. Hurt, 85
So. 3d 1084, 1087 (Fla. 2012). Florida’s long-arm statute is “to be
strictly construed, in order to guarantee compliance with due
process requirements.” Aetna Life & Cas. Co. v. Therm-O-Disc,
Inc., 488 So. 2d 83, 87 (Fla. 1st DCA 1986).
Here, neither the amended complaint nor the trial court’s
order specify which subsection of the long-arm statute provides a
basis for jurisdiction. However, even if the appealed order does not
state the basis for its decision, personal jurisdiction may be derived
from the facts alleged in the complaint. Allerton v. State Dep’t of
Ins., 635 So. 2d 36, 39 (Fla. 1st DCA 1994).
Florida’s long-arm statute contains two provisions that
provide a basis for personal jurisdiction – specific jurisdiction and
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general jurisdiction. Appellee admits that the amended complaint
does not support general jurisdiction.
Section 48.193(1)(a), Florida Statutes, confers specific
jurisdiction over
(1)(a) A person, whether or not a citizen or resident of this
state, who personally or through an agent does any of the
acts enumerated in this subsection thereby submits
himself or herself and, if he or she is a natural person, his
or her personal representative to the jurisdiction of the
courts of this state for any cause of action arising from
any of the following acts:
1. Operating, conducting, engaging in, or carrying on a
business or business venture in this state or having an
office or agency in this state.
2. Committing a tortious act within this state.[ 1]
I. Whether the amended complaint alleged a
cause of action arising from a tort committed in Florida
The corporate shield doctrine provides that personal
jurisdiction cannot be exercised over a nonresident corporate
employee sued individually for acts performed in a corporate
capacity. Doe v. Thompson, 620 So. 2d 1004, 1005 (Fla. 1993).
“The rationale of the doctrine is ‘the notion that it is unfair to force
an individual to defend a suit brought against him personally in a
forum with which his only relevant contacts are acts performed not
for his own benefit but for the benefit of his employer.’” Id. at 1006
(quoting Estabrook v. Wetmore, 129 N.H. 520, 529 (N.H. 1987)). In
Doe, the plaintiff brought a gross negligence suit against a chief
executive officer, alleging the officer failed to take adequate
measures to prevent sexual assault. 620 So. 2d at 1004. The
supreme court held that personal jurisdiction was not established,
because “[the defendant’s] allegedly negligent actions are not
1 Section 48.193(1), Florida Statutes, enumerates other bases
for specific jurisdiction, but only subsections (a)1. and (a)2. are
relevant here.
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alleged to have been taken outside his duties as [the corporation]’s
president and chief executive officer; rather, [the plaintiff] alleges
that he was acting within the scope of his employment.” Id. at
1006.
Although the corporate shield doctrine generally insulates
any nonresident corporate officer acting on behalf of his employer,
an exception exists “[w]here an individual, nonresident defendant
commits negligent acts in Florida, whether on behalf of a corporate
employer or not[.]” Kitroser, 85 So. 3d at 1090 (emphasis added).
In Kitroser, the complaint alleged that “while the [corporate]
employees were personally in Florida, each engaged in some form
of negligent conduct, either by training or supervision of [the
employee] or both, which contributed to [the decedent]’s death.”
Id. at 1089. Because the torts were allegedly committed within the
state, the supreme court held that “[t]he corporate shield doctrine,
therefore, is inapplicable and does not exclude the [corporate]
employees from the exercise of personal jurisdiction by Florida
courts.” Id. The supreme court distinguished Doe, reasoning that
in that case, the defendant’s “out-of-state activities alone did not
form a predicate for in-state jurisdiction.” Id. at 1089. The court
reasoned that “[t]o hold otherwise would be tantamount to
providing corporate employees with a form of diplomatic
immunity.” Id. at 1090.
Here, all pertinent paragraphs in Appellee’s amended
complaint alleged that Appellant acted “in the course and scope of
her employment and as corporate officer.” Thus, the corporate
shield doctrine bars the exercise of personal jurisdiction, unless
facts alleged in the amended complaint show that Appellant
committed a tort in Florida. Id. at 1090.
The amended complaint alleged that Appellant “routinely
visited and continues to visit Florida . . . in her role as a corporate
Vice President of Otis and as General Counsel of Otis,” and that
she is the Principal on a current contract between Otis Elevator
and the Board of County Commissioners in Miami-Dade. In a
section titled Parties, the amended complaint alleged that “while
physically located inside and outside of Florida,” Appellant
communicated with outside counsel headquartered in Florida
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regarding the legal representation of Otis Elevator in various legal
matters, including cases of elevator technician deaths.
Although these allegations plainly assert that Appellant
visited Florida throughout a span of nine years, none of the
allegations suggest that she committed a tort while in the forum
state. Although Count II (the sole cause of action against
Appellant) alleges that Appellant violated Titles 18 and 29 of the
United States Code by aiding, abetting and directing Otis
employees to commit OSHA violations, nowhere is it alleged that
she was in Florida during the alleged actions.
Although the exception for committing a tort “in Florida”
generally requires a defendant’s physical presence, the exception
may also encompass alleged tortious acts committed outside of
Florida, if those acts involved communication directed into Florida
for the purpose of committing a fraud, slander, or some other
intentional tort. See Allerton, 635 So. 2d at 39. In Allerton, the
defendant was an investment advisor sued for allegedly
orchestrating financial schemes. The defendant moved to dismiss
the complaint, arguing that the corporate shield doctrine insulated
him “because he was acting in an agency capacity for his
employer.” 635 So. 2d at 39. This Court held that “the facts as
alleged in the complaint preclude [the defendant]’s reliance upon
the ‘corporate shield doctrine[.]’” Id. at 37. The basis for this
holding was that the complaint alleged intentional tortious
conduct “aimed at a Florida resident,” and “[t]he quality and
nature of [the defendant’s] actions were not so ‘random, fortuitous
or attenuated’ that [he] could not reasonably anticipate being
haled into court in Florida.” Id. at 40 (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 486 (1985)). See also State, Office of
Attorney Gen., Dep’t of Legal Affairs v. Wyndham Int’l, Inc., 869
So. 2d 592, 597 (Fla. 1st DCA 2004) (holding that corporate shield
doctrine protects against “untargeted negligence” but not against
“intentional tortious acts expressly aimed at the forum state.”
(quoting Doe, 620 So. 2d at 1006 n.1)).
In Rensin v. State, Office of Attorney General, Department of
Legal Affairs, the complaint alleged that the defendant himself
falsely advertised in Florida, solicited business in Florida, and
breached contracts with Florida residents; these allegations
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satisfied the plaintiff’s initial burden to assert a basis for personal
jurisdiction. 18 So. 3d 572, 575 (Fla. 1st DCA 2009). This Court
elaborated on the intentional-tort exception:
In each of [the] cases where jurisdiction was found,
the plaintiff produced evidence of the specific conduct on
the part of the corporate officer that constituted a fraud
or intentional tort. In each case, the nonresident
corporate officer personally and intentionally engaged in
the tortious conduct and the specific conduct of the
nonresident corporate officer was calculated to inflict a
direct injury upon a resident of Florida.
Id. at 575-76. Thus, the conduct alleged must consist of intentional
and tortious acts “expressly aimed at” Florida, with knowledge by
the defendant that it “would have a potentially devastating
impact” upon the victim. Calder v. Jones, 465 U.S. 783, 783-84
(1984); see also Rensin, 18 So. 3d at 576 (“[T]he specific conduct of
the nonresident corporate officer was calculated to inflict a direct
injury upon a resident of Florida.”); Goldberg v. United States,
2014 WL 2573060 at *1, 5 (S.D. Fla. 2014) (“Although Goldberg
alleges more than ‘untargeted negligence,’ he does not allege,
argue, nor submit evidence that the [defendants’] conduct was
expressly aimed at Goldberg or would have a potentially
devastating impact upon Goldberg.”).
The threshold question raised is whether the complaint
sufficiently states a cause of action for an intentional tort. See
Wendt, 822 So. 2d at 1260; Klayman v. Judicial Watch, Inc., 2013
WL 4780139 at *1, 5 (Sept. 5, 2013) (“The Court’s consideration of
whether personal jurisdiction exists . . . must be undertaken in the
light of the claims presented, and the Court should therefore first
determine whether the Amended Complaint states any claim for
relief against the individual defendants, and if so, on what
theories.”); 8100 R.R. Ave. Realty Tr. v. R.W. Tansill Contr. Co.,
638 So. 2d 149, 151 (Fla. 4th DCA 1994) (“[T]he sole basis for
jurisdiction is that the [appellant] committed a tort in Florida. . . .
[W]e must of necessity determine whether [the complaint] states a
cause of action in tort, in order to determine jurisdiction.”).
The sole cause of action against Appellant is a claim for
“Wrongful Death Damages Against [Appellant] Arising From
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Criminal Acts Exception to Workers’ Compensation
Employer/Manager Immunity provided in Section 440.11(1)(b)2,
Florida Statutes.” Section 440.11(1)(b), Florida Statutes, provides
that workers’ compensation is the exclusive remedy in place of all
other liability, except as follows:
(b) When an employer commits an intentional tort that
causes the injury or death of the employee. For purposes
of this paragraph, an employer’s actions shall be deemed
to constitute an intentional tort and not an accident only
when the employee proves, by clear and convincing
evidence, that:
1. The employer deliberately intended to injure the
employee; or
2. The employer engaged in conduct that the employer
knew, based on prior similar accidents or on explicit
warnings specifically identifying a known danger, was
virtually certain to result in injury or death to the
employee, and the employee was not aware of the risk
because the danger was not apparent and the employer
deliberately concealed or misrepresented the danger so as
to prevent the employee from exercising informed
judgment about whether to perform the work.
(Emphasis added). District courts have discussed the high
standard of virtual certainty, stating that to reach this level, “‘a
plaintiff must show that a given danger will result in an accident
every – or almost every – time.’” R.L. Haines Constr., LLC v.
Santamaria, 161 So. 3d 528, 531 (Fla. 5th DCA 2014) (quoting List
Indus., Inc. v. Dalien, 107 So. 3d 470, 471 (Fla. 4th DCA 2013)).
The conduct alleged in the complaint was not “virtually
certain to result” in death or injury. Without virtual certainty, the
allegations in the amended complaint do not sufficiently state a
cause of action alleging an intentional tort as defined in the
workers’ compensation statute. Cf. Santamaria, 161 So. 3d at 531.
Appellee argues that its amended complaint alleged conduct
by Appellant that amounted to a first-degree misdemeanor,
thereby removing workers’ compensation exclusivity as to
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Appellant. See § 440.11(1)(b), Fla. Stat. However, section
440.11(1)(b) does not declare that criminal conduct by a corporate
officer constitutes an intentional tort; it only states that such
conduct, if amounting to a first-degree misdemeanor, removes the
immunities provided by the workers’ compensation statute. See
id. The question before us is whether Appellant is alleged to have
committed an intentional tort sufficient to overcome the corporate
shield doctrine, not whether Appellant is protected by workers’
compensation immunities. Because the amended complaint does
not allege that the conduct by Otis Elevator Company was
virtually certain to result in injury, it cannot be said that
Appellant was a principal to an intentional tort as defined by the
workers’ compensation statute.
Appellee argues that the amended complaint also alleged
fraud intentionally and expressly directed into Florida, thereby
alleging an intentional tort sufficient to pierce the corporate shield.
However, there is no fraud count in the complaint; in fact, the word
fraud is never mentioned in the cause of action against Appellant
or in the general allegations. See 8100 R.R. Ave., 638 So. 2d at 151;
see also Reina v. Gingerale Corp., 472 So. 2d 530, 531 (Fla. 3d DCA
1985) (“facts constituting fraud must be clearly stated”); A.S.J.
Drugs, Inc. v. Berkowitz, 459 So. 2d 348, 349 (Fla. 4th DCA 1984)
(holding that fraud requires a knowingly false statement, an intent
that it be acted on, and detrimental reliance);
Fla. R. Civ. P. 1.120(b) (describing Florida’s heightened pleading
requirements for fraud actions).
The amended complaint alleged that Otis Elevator Company
knowingly made false statements to its employees and the public
by stating that the company “stands behind its policies and
procedures with respect to employee safety and believes they are
consistent with applicable OSHA regulations.” Although the
amended complaint alleged that Appellant controlled the actions
of retained legal counsel and supervisors, it does not allege that
Appellant personally made any false statements or that she
instructed anyone else to make a false statement; the complaint
only alleges that Appellant directed the company to take actions
“to intentionally conceal” OSHA citations.
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Even accepting these allegations as true, as we must, this
alleged direction by Appellant could be satisfied by the company
doing nothing at all; e.g., not publishing a report on the citations
or not holding safety meetings. See Am. Dental Ass’n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (“[C]ourts may infer
from the factual allegations in the complaint ‘obvious alternative
explanation[s],’ which suggest lawful conduct rather than the
unlawful conduct the plaintiff would ask the court to infer.”); cf.
Morales v. Racetrac Petroleum, Inc., 2017 WL 6320299 at *1, 2
(M.D. Fla. Dec. 11, 2017) (dismissing complaint alleging
intentional-tort exception to workers’ compensation immunity,
because the complaint’s vague and conclusory allegations “merely
recite the elements of the intentional tort exception without
providing facts from which the Court could draw a favorable
instance”). Without clearly stated allegations asserting that
Appellant “personally and intentionally engaged in the tortious
conduct,” we cannot say that “the specific conduct of the
nonresident corporate officer was calculated to inflict a direct
injury upon a resident of Florida.” Rensin, 18 So. 3d at 576. In the
absence of an intentional tort, Appellee cannot rely on the
intentional-tort exception to the corporate shield doctrine. 2
II. Whether the amended complaint alleged a
cause of action arising from a business venture in Florida
Section 48.193(1)(a)1. confers jurisdiction where a complaint
alleges facts stating a cause of action that arises from “[o]perating,
conducting, engaging in, or carrying on a business or business
venture in this state or having an office or agency in this state.”
§ 48.193(1)(a)1., Fla. Stat. When a defendant contests a
complaint’s jurisdictional allegations, or the minimum contacts
supporting jurisdiction, he or she “must file an affidavit in support
of his or her position. The burden is then placed upon the plaintiff
to show by counter-affidavit the basis upon which jurisdiction is
2 Because the amended complaint fails to assert a basis for
long-arm jurisdiction in the absence of alleging an intentional tort,
we need not address whether Appellant’s affidavit refutes the
allegations, or whether Appellant has minimum contacts sufficient
to satisfy due process. See Doe, 620 So. 2d at 1005.
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obtained.” Doe, 620 So. 2d at 1005. “If the affidavits can be
harmonized, the court can resolve the jurisdiction issue based
upon the undisputed facts. If not, ‘the trial court [must] hold a
limited evidentiary hearing in order to determine the jurisdiction
issue.’” Schwartzberg v. Knobloch, 98 So. 3d 173, 178 (Fla. 2d DCA
2012) (quoting Venetian Salami Co. v. Parthenais, 554 So. 2d 499,
502-03 (Fla. 1989)).
Here, Appellant submitted an affidavit attesting that she
resides in Connecticut and is licensed to practice law in
Connecticut and Maryland. She stated that at no time has she:
had a usual place of abode in Florida; had a personal bank account
in Florida; had a personal phone number in Florida; owned real
property in Florida; filed a personal tax return in Florida; or had a
business office in Florida. She attested that she never served as
general counsel for Otis North America (a subsidiary of Otis
Elevator Company alleged to have relocated to Florida) or
supervised Florida branch offices, and that any work she
performed in Florida was in her capacity as a corporate officer.
Appellant’s sworn statements refute any allegation asserting
a “business venture” basis for jurisdiction, thereby shifting the
burden back to Appellee. Cf. Doe, 620 So. 2d at 1005. Although
Appellant admitted signing the company’s annual report
submitted to the Florida Secretary of State, this is insufficient to
establish jurisdiction, as the cause of action does not arise from
this contact. See Carter v. Estate of Rambo, 925 So. 2d 353, 356
(Fla. 5th DCA 2006).
Appellee’s response in opposition to Appellant’s motion to
dismiss merely reasserted the allegations in the amended
complaint and referred to admissions in Appellant’s affidavit. See
Goldberg, 2014 WL 2573060 at *3 (to prevail after a defendant
refutes allegations, a plaintiff must do more than “‘merely
reiterate the factual allegations in the complaint’” (quoting Future
Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1237, 1249
(11th Cir. 2000)). Although Appellee’s response refers to exhibits
attached to the amended complaint, none of the exhibits show
personal business ventures. As Appellant’s sworn affidavit refuted
any allegations of a personal business office or personal business
venture, and as Appellee presented no evidence to counter that
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affidavit, there was no basis for the trial court to exercise specific
jurisdiction under section 48.193(1)(a)1., Florida Statutes.
The corporate shield doctrine bars Florida courts from
exercising personal jurisdiction over Appellant. We thus reverse
and remand with directions to the trial court to enter an order
dismissing the amended complaint as to Appellant.
REVERSED and REMANDED.
ROBERTS and OSTERHAUS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Kenneth B. Bell and Lauren V. Purdy of Gunster, Yoakley &
Stewart, P.A., Tallahassee, for Appellant.
Philip J. Padovano of Brannock & Humphries, Tallahassee, and
Maegen Peek Luka of Brannock & Humphries, Tampa; Sidney L.
Matthew of Sidney L. Matthew, P.A., Tallahassee, for Appellee.
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