Gust v. Flint ( 1987 )

Smith, Justice,

dissenting.

Under our Long-Arm Statute, OCGA § 9-10-91, as interpreted by the majority today, a civil defendant from another state who has committed the intentional tort of fraud against a citizen of this state is better off than a defendant from another state who sends a negligently manufactured product to Georgia. Unfortunately, it may appear that we punish carelessness but only wink at outright deception. We should not send the wrong message to those who would launch deceptive business practices into Georgia from afar.

As Justice Gregory states in his concurrence, Georgia should have a Long-Arm Statute that fits the contours of the limits of constitutional due process. Citing Coe & Payne Co v. Wood-Mosaic Corp., 230 Ga. 58 (195 SE2d 399) (1973), the Fifth Circuit Court of Appeals noted that a non-resident “who simply places [a] product in the stream of commerce with reason to anticipate that it may find its way into the forum state may well be [amenable] to service of process if as a matter of state policy the applicable long-arm statute undertakes to go that far.” Thorington v. Cash, 494 F2d 582, 587 (5th Cir. 1974). The Thorington court went on to state, “[w]e see no reason why the same principle is not equally applicable when a non-resident sends material misrepresentations into the forum state with the intention that they be relied upon and where they are in fact relied upon by a resident of the forum state to his detriment. Unlike many of the stream of commerce products liability cases in which the non-resident defendant merely had reason to anticipate that the product would enter the forum state, Cash, in a complaint that fully meets F.R.Civ.P. 8 (a), is alleged to have personally transmitted the misrepresentations into Georgia either by mail or telephone, or both.” Id. at 587.

Decided June 4, 1987. Oliver & Oliver, William R. Oliver, for appellants. Ernest H. Woods III, for appellee.

While the advertising campaign in this case could well bring the appellants within the range of our Long-Arm Statute under an interpretation similar to that made in Thorington, supra, the direct telephone contact and negotiations certainly should. I would follow such a broad interpretation and affirm the opinion of the Court of Appeals.