Bennett v. Rapid American Corp.

RENDLEN, Judge.

These are consolidated claims for injury or wrongful death against a group of companies engaged in the manufacture or sale of asbestos products from which plaintiffs or their decedents allegedly contracted asbestosis and other asbestos-related diseases. Plaintiffs appeal from the order of the trial court dismissing their petitions against defendant Rapid American Corporation for lack of in personam jurisdiction. The causes are here on transfer from the Missouri Court of Appeals, Eastern District. We reverse and remand.

There is no contention that Rapid American has had any direct or other contact with Missouri or has been involved in the sale or manufacture of asbestos. Rather, plaintiffs rest their claim of jurisdiction on the activities of Philip Carey Manufacturing Company (Old Carey), a seller of insulation products, and its corporate relationship to Rapid American. Old Carey was an Ohio corporation headquartered in that state and which merged into Glen Alden Corporation on June 1, 1967; the assets, liabilities and business operations of Old Carey were simultaneously transferred to a separate subsidiary, Philip Carey Manufacturing Corporation (New Carey), which changed its name to Philip Carey Corporation in February 1968. New Carey continued to conduct the asbestos business, in which Glen Alden itself was not involved.

In 1970, New Carey merged with Briggs Manufacturing Company, forming the Pa-nacon Corporation, and in 1972, Glen Alden sold its majority stock interest in Panacon to the Celotex Corporation, which soon thereafter merged Panacon into itself. Celotex continued the use of the Old Carey trademarks and Glen Alden later merged with Rapid American Corporation, assuming the name of the latter. The new company then merged with Kenton Corporation to form Rapid American Corporation, the present defendant. There is no contention that the companies presently comprising defendant were themselves engaged in the asbestos business; rather, the assertion of jurisdiction is premised on the June 1, 1967 merger of Old Carey into Glen Alden.

First noting that the trial court’s order was a final appealable order, we turn to the question of personal jurisdiction. Although Tretter v. Rapid American Corporation, 514 F.Supp. 1344 (E.D.Mo.1981), held that the 1967 merger caused Rapid American to assume the liabilities of Old Carey, including product liability claims, as a matter of corporate law, Rapid American’s amenability to suit is a separate question. See Witt v. Scully, 539 F.2d 950, 951-52 (3rd Cir.1976). A myriad of cases hold that a corporation may be subject to personal jurisdiction if its predecessor had sufficient contacts with the state to allow the exercise of jurisdiction. E.g., Green v. Montgomery Ward & Co., Inc., 775 S.W.2d 162, 166 (Mo.App.1989); United States v. Bliss, 108 F.R.D. 127, 133-34 (E.D.Mo.1985); Williams v. Bowman Livestock Equipment Co., 927 F.2d 1128, 1132 (10th Cir.1991); City of Richmond, Virginia v. Madison Management Group, Inc., 918 F.2d 438, 454-55 (4th Cir.1990); Duris v. Erato Shipping, Inc., 684 F.2d 352, 356 (6th Cir.1982), cert. granted on other grounds, 459 U.S. 1014, 103 S.Ct. 371, 74 L.Ed.2d 506 (1982); Explosives Corp. of America v. Garlam Enterprises Corp., 615 F.Supp. 364, 367 (D.C.P.R.1985); Bowers v. Neti Technologies, 690 F.Supp. 349, 360-61 (E.D.Pa.1988); Goffe v. Blake, 605 F.Supp. 1151, 1154 (D.Del.1985); Cole v. Caterpillar Machinery Corp., 562 F.Supp. 179 (M.D.La.1983); Maryland National Bank v. Shaffer Stores Co., 240 F.Supp. 777, 783-85 (D.Md.1965); Simmer v. American Cyanamid Corp., 394 Pa.Super. 464, 576 A.2d 376, 385-90 (1990). Plaintiffs must show that defendant committed a tort in Missouri, that the action caused the plaintiff’s injury, § 506.500, RSMo 1986, and that defendant has sufficient purposeful minimal contacts with this state so that it “should reasonably anticipate being haled into court here," and thus avoid offending “traditional notions of fair play and substantial justice.” Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). See also State ex rel. Ranni Associates, Inc. v. Hartenbach, 742 S.W.2d 134, 137 (Mo. banc 1987).

Our task is somewhat complicated by the record provided in this case, for as noted above, this is the consolidation of twelve different actions. One of these, Charles Hagen v. Celotex Corporation, et al., No. 872-01433, is a claim for personal injuries brought by Mr. Hagen. A related case, Charles Hagen, et al., v. Celotex Corporation, et al, No. 882-01508, is a wrongful death action brought by Charles Hagen and his children for the death of his wife, Gloria. The trial court dismissed the wrongful death action against Rapid American for lack of personal jurisdiction, but in that case plaintiffs stipulated as to the severance of Rapid American from the trial which proceeded against the remaining defendants. Plaintiffs then appealed from the order of dismissal as to Rapid American but the court of appeals dismissed their appeal for lack of standing. Hagen v. Rapid American Corp., 791 S.W.2d 452, 455 (Mo.App.1990). The subsequent trial against the remaining defendants resulted in a jury verdict of two million dollars for plaintiffs, and the opinion on appeal from that decision is handed down this day. Charles Hagen, et al., v. Celotex Corp., 816 S.W.2d 667 (Mo. banc, 1991).

When the instant action (for personal injury) was pending in the court of appeals, plaintiffs sought to file a deposition taken in the wrongful death action, as well as a deposition taken in Tretter v. Rapid American Corp., 514 F.Supp. 1344, cited above. The court of appeals, as do we, properly refused to review documents not weighed by the trial court because materials not considered by the trial court may not be considered on this appeal. Landmark North County Bank & Trust Co. v. National Cable Training Centers, Inc., 738 S.W.2d 886, 889 (Mo.App.1987). Plaintiffs also seek to file the record of Charles Ha-gen’s trial testimony from the wrongful death action, and similarly we refuse to consider this material not before the trial court in the instant case. Further, although twelve cases have been consolidated here, the legal file contains only the documentation pertinent to Louise C. Bennett v. Celotex Corporation, et al., No. 842-04784. Plaintiffs, however, have filed a motion to supplement the legal file with the petitions, answers, crossclaims and docket sheets in the Hagen personal injury action, as well as two of the other cases consolidated herein. As these materials were by definition before the trial court, we grant this motion to supplement the legal file.

We turn now to the allegations of jurisdiction in the petitions, which contain the following language:

The defendants, and each of them, are corporations who are amenable to the jurisdiction in the Courts of Missouri by their respective conduct of substantial and/or systematic business in Missouri and by the transactions, conduct and occurrences hereinafter described which subjects them to the jurisdiction of Missouri and service of process in accordance with Sections 506.500 et seq., 351.-630, 351.633, 355.375 R.S.Mo. and each corporation, presently or in the past, mines, manufactures, processes, imports, converts, compounds, and/or distributes, sells and retails substantial amounts of asbestos and asbestos related materials and which are sold, distributed, placed into the stream of commerce and used in Missouri.

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That the defendants, and each of them, were at all times relevant hereto miners, manufacturers, processors, importers, converters, compounders and/or distributors, sellers and retailers of asbestos and asbestos related insulation materials.

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The defendants, and each of them, acting through their agents, servants, and/or employees cause and have caused in the past certain asbestos and asbestos related insulation materials to be placed in the stream of interstate commerce with the result that said asbestos and asbestos related materials came into use by the plaintiff’s decedent herein and caused and contributed to cause his death.

The Bennett petition alleges:

That Fred Bennett, plaintiff’s decedent herein, was an insulator, who for a long period of time worked with and was exposed to the asbestos and asbestos related insulation and pipe covering materials provided and furnished for use by defendants, and mined, manufactured, processed, imported, converted, compounded, distributed and/or sold by the defendants.

The other petitions contain similar language but specify a number of years, each encompassing a period prior to 1967.

Plaintiffs concede that only the actions of Old Carey (before the merger of 1967) can serve to impose liability on defendant, for Rapid American and Glen Alden, its predecessor, have had no involvement with asbestos manufacture and sale and no contacts with Missouri, and we find no allegation in the petitions under § 506.500.1(1) sufficient to demonstrate that Old Carey transacted business in the State of Missouri. The petitions do not address the dates of manufacture or sale of products of Old Carey to which plaintiffs or their decedents were exposed, and thus fail to indicate whether the injuries alleged arose from pre-merger manufacture or sale of Old Carey Products.

In Green v. Montgomery Ward, 775 S.W.2d 162, 166 (Mo.App.1989), the court, on review of the motion to dismiss for lack of jurisdiction, found the record inadequate to determine whether the predecessor corporation had the requisite minimum contacts and thus the court reversed the trial court’s dismissal and remanded to allow the codefendant (also a third party claimant) the opportunity to conduct discovery on the jurisdictional issue. Similarly, these consolidated cases are remanded for further proceedings with directions that the trial court shall liberally grant leave to amend the petitions. Rule 55.33(a).

Reversed and remanded for further proceedings consistent with this opinion.

ROBERTSON, C.J., COVINGTON and HOLSTEIN, JJ., and MORGAN, Senior Judge, concur.