Kailieha v. Hayes ( 1975 )

OPINION OF THE COURT BY

MENOR, J.

The plaintiff in the court below [appellant herein] is a resident of Hawaii. The defendant [appellee herein] is a resident of Virginia who was engaged in the practice of medicine in Norfolk, Virginia. One Linda Bishop, a Hawaii resident, while visiting in Virginia, found it necessary to consult the defendant, who examined her and prescribed medication for her use. The prescription was filled in Virginia. About a week after her consultation with the defendant, and following her return to Hawaii, Linda Bishop lost consciousness while driving on one of the public streets in Honolulu. As a result, she crashed into the automobile driven by the plaintiff, who was injured as a proximate consequence of the collision. The complaint¹ alleges that the defendant knew Linda Bishop was a Hawaii resident who would be returning to Hawaii shortly after her examination. It charges the nonresident physician with negligence in diagnosing her illness and prescribing medication for her use. The patient, Linda Bishop, is not herself a party to this action.

Service was made upon the nonresident defendant in Virginia pursuant to HRS § 634-71(b). Upon motion by the defendant, who appeared specially through his counsel to challenge the Hawaii court’s jurisdiction on constitutional grounds, the trial court dismissed the plaintiff’s complaint for lack of jurisdiction over the person of the nonresident defendant. The plaintiff appeals.

The Hawaii “long arm” statute extends the jurisdiction of Hawaii’s courts to any person who commits “a tortious act within this State.” HRS § 634-71(a) (2). A tort is committed where the injury occurs, and the phrase “tortious act” encompasses the injurious consequences of an act. Duple Motor Bodies, Ltd. v. Hollingsworth, 417 F.2d 231 (9th Cir. 1969); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432, 176 N.E.2d 761 (1961). Therefore, statutorily, the court below was not prohibited from assuming jurisdiction over the defendant. The fundamental issue, however, is whether the assertion of jurisdiction by the Hawaii courts over the nonresident Virginia physician would comport with constitutional principles of due process.

Pennoyer v. Neff, 95 U.S. 714 (1878), laid down the proposition that a judgment in personam against a nonresident party defendant is without any validity if he has not voluntarily appeared or been personally served with process within the forum state. This rule has since been relaxed, so that presently “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he has certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). See also McGee v. International Life Insurance Co., 355 U.S. 220 (1957). This is not to say, however, that Pennoyer v. Neff has been reduced to total insignificance. We made that clear in Gordon v. Grandstedt, 54 Haw. 597, 513 P.2d 165 (1973), in which we quoted the following language from Hanson v. Denckla, 357 U.S. 235, 251 (1958):

“But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. . . . Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him.” 54 Haw. at 602, 513 P.2d at 168 (Emphasis added)

While the foregoing cases did not involve tortious acts, it is clear that the requirement of minimum contact is equally applicable to actions sounding in tort. In Duple Motor Bodies, Ltd. v. Hollingsworth, supra, the court stated:

“Here the facts establishing jurisdiction under the Hawaii statute (commission of a tortious act within Hawaii) also establish liability and, where disputed, cannot suffice as contacts with the forum state. What is needed is some additional factor that would render it fair to require the manufacturer to submit these disputed issues to a foreign forum.” 417 F.2d at 235 (Emphasis added)

And in Gray v. American Radiator & Standard Sanitary Corp., supra, it was said:

“Under modern doctrine the power of a State court to enter a binding judgment against one not served with process within the State depends [in essential part] upon . . . whether he has certain minimum contacts with the State.” 22 Ill. 2d at 437. 176 N.E.2d at 763 (Emphasis added)

See also Oliver v. American Motors Corp., 70 Wash. 2d 875, 425 P.2d 647 (1967); cf. Jones Enterprises, Inc. v. Atlas Service Corp., 442 F.2d 1136 (9th Cir. 1971).

Whether the constitutional requirements of due process have been met depends upon the facts of the particular case. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952). On the question of the sufficiency of the minimum contact necessary to validate the exercise of jurisdiction over the nonresident defendant, the following cases, by reason of statutory or jurisdictional affinity, merit our serious consideration: Gray v. American Radiator & Standard Sanitary Corp., supra; Duple Motor Bodies, Ltd. v. Hollingsworth, supra; Jones Enterprises, Inc. v. Atlas Service Corp., supra; and Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972).

In Gray, a products liability case, the constitutional reach of the Illinois “long-arm” statute, after which the Hawaii statute was patterned, was in issue. There, a water heater safety valve manufactured in Ohio had been sold to a Pennsylvania manufacturer of water heaters. A hot water heater in which the safety valve was incorporated exploded and injured the consumer plaintiff in Illinois. Negligence on the part of the Ohio manufacturer in the construction of the safety valve was alleged. Suit was filed in Illinois and service was made upon the Ohio defendant pursuant to the Illinois “long-arm” statute. In holding that the minimum contact requirement had been met, the Illinois court recognized as a general proposition that it would not be unjust to hold a nonresident corporation, which elects to sell its products within the forum state, answerable for any injuries caused by defects in those products. The court further explained:

“In the case at bar defendant does not claim that the present use of its product is an isolated instance. While the record does not disclose the volume of [Ohio defendant’s] business or the territory in which appliances incorporating its valves are marketed, it is a reasonable inference that its commercial transactions, like those of other manufacturers, result in substantial use and consumption in this State. To the extent that its business may be directly affected by transactions occurring here it enjoys benefits from the laws of this State, and it has undoubtedly benefited, to a degree, from the protection which our law has given to the marketing of hot water heaters containing its valves.” 22 Ill. 2d at 441-442. 176 N.E.2d at 766.

Duple Motor Bodies, Ltd. v. Hollingsworth, supra, which was decided by the Ninth Circuit Court of Appeals, was also a products liability case. Suit was filed in the United States District Court for the District of Hawaii against a nonresident English manufacturer of coaches, for injuries sustained in Hawaii. The coach which was involved in the accident resulting in the injuries to the plaintiff, was originally ordered by a Hawaiian firm from Vauxhall, an English corporation licensed to conduct business within the State. Vauxhall in turn placed its order with Duple in England. The solicited work was performed wholly in England. Service upon the English manufacturer was made pursuant to Hawaii’s “long-arm” statute. In holding that the presence of the coach body in Hawaii, brought about by the nonresident defendant’s sale to Vauxhall with knowledge that the product was destined for Hawaii, was sufficient contact with this State to meet the requirements of due process, the court of appeals stated:

“We do not regard it as offensive to fair play or substantial justice or an undue burden on foreign trade to require a manufacturer to defend his product wherever he himself has placed it, either directly or through the normal distributive channels of trade. If it is clearly foreseeable as a result of trade with a foreign state that injury from a defective product (if it occurs) would occur in that state, the hardship of defending the product in that state in our judgment must be assumed as an attribute of foreign trade.” 417 F.2d at 235.

Jones Enterprises, Inc. v. Atlas Service Corp., supra, also decided by the Ninth Circuit, was an action for breach of contract. An apartment building constructed in Alaska collapsed, allegedly the result of defective drawings and designs and the failure of the material supplied to conform to contract specifications. The alleged derelictions occurred before the defective products reached Alaska. The court of appeals held that the minimum contact requirement was met with respect to the nonresident architects who had prepared the alleged defective shop drawings and design calculations, because they knew that the ultimate destination of their work product was Alaska. As in Duple, the court placed a great deal of emphasis upon the “stream of commerce” aspect of the situation before it:

“As was stated in Duple, when the activities complained of create a substantial risk of injury in the forum state, direct contact with that state is not essential. It is sufficient that, as here, the defendant sets his product or his designs into the stream of commerce, knowing or having reason to know that they will reach the forum state and that they create a potential risk of injury.” 442 F.2d at 1140.

In Wright v. Yackley, supra, the Ninth Circuit had before it a situation virtually identical to that which we have been called upon to review. In that case the plaintiff was a resident of Idaho at the time suit was filed. The defendant physician resided and practiced medicine in South Dakota. As in this case, the defendant had examined the plaintiff and prescribed medication for her use. The court of appeals paraphrased the factual situation before it thusly:

“In our view . . . this does no more than put the doctor in the position of one who, in South Dakota, treats an Idaho resident with the knowledge of her imminent return to Idaho and that his treatment may thus cause effects there.” 459 F.2d at 289.

The federal district court in Idaho had dismissed the resident plaintiff’s suit for lack of jurisdiction over the nonresident defendant, who had been served pursuant to the Idaho “long-arm” statute. In affirming the judgment of the lower court, and in holding that assertion of jurisdiction over the South Dakota physician would be violative of the Due Process Clause of the Federal Constitution, the appeals court further commented:

“In the case of personal services focus must be on the place where the services are rendered, since this is the place of the receiver’s (here the patient’s) need. . . . They are directed to no place but to the needy person herself. It is in the very nature of such services that their consequences will be felt wherever the person may choose to go. However, the idea that tortious rendition of such services is a portable tort which can be deemed to have been committed wherever the consequences foreseeably were felt is wholly inconsistent with the public interest in having services of this sort generally available. Medical services in particular should not be proscribed by the doctor’s concerns as to where the patient may carry the consequences of his treatment and in what distant lands he may be called upon to defend it.” 459 F.2d at 289-290.

In distinguishing the product liability cases from the medical malpractice suit before it, the federal appeals court emphasized the localized nature of the average doctor’s medical practice, pointing out that it was “[ujnlike a case involving voluntary, interstate economic activity, for example, which is directed at various states in order to benefit from effects sought in those states.” 459 F.2d at 290. In the Gray, Duple, and Jones cases, supra, injuries were caused by products introduced into the stream of commerce by defendants whose primary interest was to benefit economically from their use in other states. Correspondingly, the forum states had an overriding interest in the protection of their citizens from injuries resulting from the use of these products.

The case before us is not one involving a defendant who introduces a defective product into the stream of commerce. Neither is it one involving an intentional tort, nor one where the act was performed for the purpose of causing an effect in Hawaii. Here there was only a chance encounter between a Hawaii resident visiting in Virginia and a physician who was engaged in a strictly localized medical practice.

We hold that under the circumstances of this case, the assertion of jurisdiction over the defendant Virginia physician would be violative of his rights under the Due Process Clause of the United States Constitution. Ordinary foreseeability principles of tort law are helpful but not determinative, for we are here concerned with constitutional principles of due process. Mere foreseeability of injury was not sufficient to establish the minimum contact necessary to satisfy the requirements of due process. Wright v. Yackley, supra; Gelineau v. New York University Hospital, 375 F.Supp. 661 (D.N.J. 1974). See McAndrew v. Burnett, 374 F.Supp. 460 (M.D.Penn. 1974).

Gelineau v. New York University Hospital, supra, involved a situation where a New Jersey resident, upon the recommendation of his local doctor, traveled to New York City to seek specialized treatment for his malady. Subsequent to his examination by a New York physician, he was admitted to New York University Hospital. The plaintiff’s complaint alleged that as a result of the hospital’s negligence in administering and furnishing him with suitable blood, he had contracted infectious hepatitis. Suit was filed against the New York hospital in federal district court in New Jersey and service of process was effected under the New Jersey “long-arm” statute. In holding that the minimum contact requirement had not been satisfied and that it would be manifestly unjust to exercise jurisdiction under the particular circumstances of that case, the federal court stated:

“Any other rule would seem to be not only fundamentally unfair, but would inflict upon the professions the obligation of traveling to defend suits brought in foreign jurisdictions, sometimes very distant jurisdictions, there brought solely because the patient or client upon his return to his own home decided to sue at home for services sought by himself abroad.

“Such a rule [at the same time] would have a chilling effect on the availability of professional services to nonresidents.” 375 F.Supp. at 667.

It would also seem to us fundamentally unfair and offensive to all traditional notions of fair play and substantial justice to compel the Virginia physician in this case to defend against a suit in the courts of Hawaii, simply by reason of an isolated encounter in Virginia with a resident of Hawaii. Minimum contact under the Due Process Clause of the Federal Constitution requires something more than the fortuitous circumstance of a visiting Hawaii resident finding herself in need of, and soliciting the services of a local practitioner in that State.

Affirmed.

Jack C. Morse (Saunders & Morse of counsel) for plaintiff-appellant. William H. Dodd (Chun, Kerr & Dodd of counsel) for defendant-appellee.

1 We look to the allegations to determine jurisdiction in this type of case. Texair Flyers, Inc. v. Dist. Ct., First Jud. Dist., 506 P.2d 367, 370 (Sup. Ct. Col. 1973); Nelson v. Miller, 11 Ill. 2d 378, 391-394, 143 N.E.2d 673, 680-681 (1957); 2 Moore, Federal Practice ¶ 4.41-1 [3] at 1291.57-58 (2d ed. 1974).