Petition for Writ of Certiorari — Canadian General Insurance v. Domtar, Inc.
Supreme Court brief1995
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98°65 60CI 23195
No. ___OFFICE OF JHE CLERK
Su the
Supreme Court of the Mnited States
October Term, 1995
Canadian General Insurance Company,
Petitioner,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE MINNESOTA SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
Larry A. Hanson, Esq.
Counsel of Record for Petitioner
Moore, Costello & Hart, P.L.L.P.
1400 Norwest Center
55 East Fifth Street
St. Paul, Minnesota 55101-1792
(612) 227-7683
Leonard W. Glewwe, Esq.
Of Counsel
1906 — Bachman Legal Printing & (612) 839-9618 @ FAX (612) 387-8063
OBA sige eat elias.
——
;
i
;
;
WHETHER A CANADIAN INSURER’S ISSUANCE
OF INSURANCE POLICIES IN CANADA TO A
CANADIAN INSURED FOR POLICY PERIODS OF 1956-
1965 PROVIDING COVERAGE AGAINST LIABILITY
FOR ACCIDENTS DURING THE POLICY PERIOD
CONSTITUTES SUFFICIENT MINIMUM CONTACTS
WITH THE STATE OF MINNESOTA FOR PERSONAL
JURISDICTION WHEN
(A) AT THE TIME OF THE POLICY THE INSURED
HAD NO OPERATIONS IN MINNESOTA AND
HAD SOLD THE SITE OF PRIOR OPERATIONS,
AND
(B) THE ENVIRONMENTAL DAMAGE CLAIMS
FOR WHICH THE INSURED SOUGHT
COVERAGE AROSE OUT OF THE INSURED’S
PREDECESSOR’S MINNESOTA OPERATIONS
DURING THE YEARS 1924 TO 1948.
LIST OF ALL PARTIES TO THE PROCEEDING
IN THE MINNESOTA SUPREME COURT
Domtar, Inc.
Niagara Fire Insurance Company
Continental Insurance Company
Allstate Insurance Company of Canada
American Home Assurance Company
Canadian General Insurance Company
Chubb Insurance Company of Canada
Columbia Casualty Company
Federal Insurance Company
Gerling Global Reinsurance Corporation
Halifax Insurance Company
CIGNA Insurance Company of Canada (formerly INA
Insurance Company of Canada)
New Hampshire Insurance Company
Scottish & York Insurance Company
Zurich Insurance Company
World Auxiliary Insurance Corporation Limited
Certain Underwriters at Lloyd’s of London
Canadian General Insurance Group Limited is the parent
company of Petitioner Canadian General Insurance Company.
Petitioner Canadian General Insurance Cornai.y has
ownership interests in the following non-wholly owned
subsidiaries: none.
ii
pies Die tlarhs seen eae.
Se APEC ET LS ve 4 Poor
Page
QUESTION PRESENTED FOR REVIEW.............00::s000000000
oe saceconssosevsnsenenssenens i
OS ii
TABLE OF AUTHORITIES. ..0........0.::ccsesscsssccsscsssscsnsscsseseeee v
cc ssesnvosessieesonvosserenesene 1
EE EE OL TT 2
CONSTITUTIONAL PROVISIONS AND
ee ED 2
STATEMENT OF THE CASE ................cccssscessssscssscossesscees 3
ARGUMENT
I. The Minnesota Supreme Court’s Decision Conflicts With
the “Minimum Conflicts” Jurisdictional Standard as
Established by the Decisions of this Court .................... 1]
II. This Case Presents Important and Unsettled Issues of
Law Under the Federal Constitution Which Should be
8 I erro 18
Ill. The State and Federal Courts’ Decisions are in Conflict
Over Issues Presented by this Case....................::eeeeeeee 20
IV
WACK Le 20 seer
TABLE OF AUTHORITIES
TABLE OF CASES: PAGE
Asahi Metal Ind Co.. Lid S eo f
California, 480 U.S. 102 (1987)...............c eee 13, 17-19
AIU Insurance Co. v. Superior Court, 222 Cal. Rptr. 880
WO so cstiicninncnAccssdonincsrnciesetesvenseveceasnsesesti 8
Batton v. Tennessee Farmers Mutual Ins. Co., 736 P.2d 2
I NEE. oss catacsiishacocesosnliiaiondlionsutesienncceneemiirovaserionits 21
Borg-Warner Corp. v. Insurance Co. of North America,
577 N.Y.S.2d 953 (N.Y. App. Div. 1992)..............c eee. 15
Burger King Corporation v. Rudzewicz, 471 U.S. 462
PUD sisi ooicusicas MMMM etd cbcivesgeccaneccidacateonsdonncdnoiehs 12, 13
i n_v. General _of Wisconsi
Se CT BN vi esircncctccessesvencssscceiacabeveciees 20
Domtar, Inc. v. Niagara Fire Ins. Co., 533 N.W.2d 25
I I i acne souk ecdiaaneatesvvenpinenietonecsipiae 1, 10, 17
Domtar, Inc. v. Niagara Fire Ins. Co., 518 N.W.2d 58
A SN BPED vceixsccnseiveivscsipherasnrsseveopeniooaetvonces 2,9
Farmers Elevator Mutual Ins. Co. v. Burik, 187 N.E.2d
RR ee BI ida iericvikncesustntchlententinkdapsdantasens 15
n Vv i n
ee ae OEE Ce Gil Bi cicccnnnestunsntvedercdeervencesss 21
v
Foreman v. Jordan, 131 So.2d 796 (La. Ct. App. 1961)....... 15
Hanson v. Denckla, 357 U.S. 235 (1958) .......c.ccccccsesesceseeees 13
Helicopteros Nationales De Columbia, S.A. v. Hall, 466
Te Be sik osiicentidedccetulveeinaditlendictbas) 7, 14
Internationa! Shoe Co. v. Washington, 326 U.S. 310
II ise 8 chides Sicesieachiadnae tn atti 9, 11, 12, 18
Leggett v. Home Indemnity Co., 461 F.2d 257 (10th Cir.
, f | Re TO ee reer ere Ree ae we 15
McGee _v. International Life Ins. Co., 355 U.S. 220
(5, , SE eee ECR SENOS Mee ees see 13, 18
Meyer v. Auto Club Ins. Assoc., 492 So.2d 1314 (Fla.
| ERR UDO en SRS er rear ee ee 21
Indemnity Co., 457 N.W.2d 175 (Minn. 1990)................ 20
Payne Motorists’ Mutual Ins. Cos., 4 F.3d 452 (6th Cir.
|.) CO ee eA MPR Bey BRC aS Skies i. Fee 21
Rossman v. State Farm Mutual Auto Ins, Co., 832 F.2d
BUR OU: TOG ide hei ee er eo, 21
Rush v. Savchuk, 444 U.S. 320 (1980)..0......cccceeceseeeees 16, 20
Stanek v. A.P.L, Inc., 474 N.W.2d 829 (Minn. Ct. App.
| renner RU So MBit nw Be Eases .
Virginia, 339 U.S. 643 (1950)..........:cececeerseeeerenenenenenees 18
495 N.W.2d 408
(Minn. 1992) ...........ccccccssssesssesseneensssscssesessnenensnsnenenenenenees 3
Waste Management, Inc. v. Royal Ins. Co., 649 A.2d 379
(N.J. 1994) cert. denied, 115 S.Ct. 1175 (1995)............-. 21
: vy. W 444 US.
FBG (1GOD). ..20cccccceservesevscnsessevesesrersseaverseeqeoes 12, 14, 16, 21
UNITED STATES CONSTITUTION PAGE
USS. Const. amend. XTV, § 1.................ccccscccsssessereeereees Passim
STATUTES AND RULES PAGE
28 U.S.C. § 1257 (1994)..........csscscesscsrescseerserssreesecsssseeseneeess 2
Minn. Stat. § 115B.17 and 18 (1994) .............:ccceseeeeseeeceeeees 5
Minin. Stat. § 543.19 (1994) .0.........cccsceseseeteeereseeeneereseneeeeeees 3
Minn. R.Civ.App.P. 117..............ccccscssesserssrenrsecneeeecsessessnensens 9
Minn. R.Civ.App.P. 140............:csccccsscesessessesesseeneseeeseseneenens 11
vii
TEXT PAGE
William Hoffman, Personal Jurisdiction Over Alien
, ( ‘es: The Terri cc
Rule, 26 Tort & Ins. L.J. 3 (1991) os es ee 7
E. Joshua Rosenkranz, Note, The Pollution Exclusion
Clause Through the Looking Glass, 74 Geo. L.J. 1237
CODD ii esschasiied csseccni coh cap ANnlclncdoectndcencroosatabien 15
No.
In the
Supreme Court of the United States
October Term, 1995
Canadian General Insurance Company,
Petitioner,
vs.
Domtar, Inc.,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE MINNESOTA SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
Canadian General Insurance Company petitions for a writ
of certiorari to review the judgment of the Supreme Court of
Minnesota in this case.
OPINIONS BELOW
The decision of the Minnesota Supreme Court was
reported as Domtar, Inc. v. Niagara Fire Insurance Co., 533
l
N.W.2d 25 (Minn. 1995) and is reproduced in Appendix A,
infra. The decision of the Minnesota Court of Appeals was
reported as Domtar, Inc. v. Niagara Fire Insurance Company,
518 N.W.2d 58 (Minn.Ct.App. 1994) and is reproduced in
Appendix B, infra. The Order and Memorandum of the
Minnesota District Court was unreported. It was filed as
Domtar, Inc. v. Niagara Fire Insurance Company, No. CO-91-
8218 (Minnesota District Court, 2nd Judicial District, Nov.
17, 1993) (Order and Memorandum) and is reproduced in
Appendix C, infra.
JURISDICTION
By a final judgment filed on June 16, 1995, the Minnesota
Supreme Court affirmed the denial of Petitioner’s motion to
dismiss Respondent’s claims for lack of personal jurisdiction
pursuant to the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. By order filed
on July 25, 1995, the Minnesota Supreme Court denied
Petitioner’s petition for rehearing with respect to the June 16,
1995 judgment. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. § 1257 (1994).
CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED
The provision of the United States Constitution involved
is the Due Process Clause of the Fourteenth Amendment:
Section | ... nor shall any State
deprive any person of life,
2
liberty, or property without due
process of law ... .
Minnesota Statutes Section 543.19 (1994) provides:
As to a-cause of: action ari ‘ng
from any acts enumerated in this
subdivision, a court of this state
... May exercise jurisdiction over
any foreign corporation ... .
This section applies if, in person
or through an agent, the foreign
corporation ... .
** *(b) Transacts any business
within the state”
The Minnesota Supreme Court has held that the personal
jurisdiction requirements of the federal constitution and of
Minn. Stat. § 543.19 (1994) are the same. Valspar Corp. v.
Lukken Color Corp., 495 N.W.2d 408 (Minn. 1992).
STATEMENT OF THE CASE
In 1991, Respondent Domtar, Inc. (‘Domtar), a
Canadian corporation, commenced an action in Minnesota
against Petitioner Canadian General Insurance Company
(‘Canadian General”), also a Canadian corporation, and fifteen
other alleged liability insurers. Domtar had received notice
that it was a potentially responsible party for pollution on a
site in Duluth, Minnesota, and had been required to undertake
an investigation and cleanup. (Appendix A-2, B-2-3.)
Domtar alleged that this notice triggered Canadian General
3
insurance policies and that Canadian General owed indemnity
and defense coverage for environmental liability claims under
accident liability policies issued by Canadian General in
Canada for policy periods 1956 to 1965.. (Appendix A-2; B-
3.)
Canadian General moved to dismiss the action for lack of
personal jurisdiction. Prior to the ruling on motion, the Trial
Court allowed discovery proceedings on the jurisdictional
issue. (Appendix A-2-5i; B-4.) Accordingly, the factual
record is complete and essentially undisputed concerning
jurisdiction.
By uncontradicted affidavit, and as essentially relied on
and acknowledged by the Minnesota Supreme Court,
Canadian General is a Canadian corporation with its principal
offices located in Scarborough, Ontario. (Appendix A-4.)
Canadian General is not and had never been licensed to do
business in the State of Minnesota, or in any other state of the
United States; (Appendix A-4; B-3.) Canadian General was
not engaging in and had not engaged in any business in
Minnesota; Canadian General has not and does not maintain
offices in Minnesota or in any other locations outside of
Canada; Canadian General does not, nor had it ever,
maintained offices, agents, or employees in Minnesota or in
any other state for the purposes of transacting any business in
such states. (Appendix A-4.) Canadian General does not
possess any interest in any real or personal property or bank
accounts located within the State of Minnesota (Appendix A-
4); and Canadian General has not issued any policies of
insurance to any resident of the State of Minnesota, (Appendix
A-4) has not transacted its insurance business in this State and
has not issued any policies of insurance to residents of
Minnesota. (Appendix A-5.)
In 1956 and continuing through 1965, Domtar had no
Ongoing operations in Minnesota. However, in 1924,
Domtar’s predecessor began operating a tar manufacturing
4
plant at Duluth, Minnesota. (Appendix A-3.) In 1930,
Domtar’s subsidiary began operating the plant until it ceased
operations in 1948. (Appendix A-3.) In 1955, the plant had
been demolished, and Domtar sold the site. (Appendix A-3.)
That sale effectively concluded Domtar’s operations in
Minnesota. (Appendix B-14). Thus, -Domtar effectively
ceased operations in Minnesota prior to any alleged Canadian
General policies of insurance. (Appendix B-13-14.)
In March 1991, the Minnesota Pollution Control Agency
(“MPCA’) issued a Request for a Response Action to Domtar
and other former owners of adjoining properties under Minn.
Stat. § 115B.17 and 115B.18.' The MPCA identified Domtar
as a potentially responsible party with respect to alleged
pollution at the tar plant site and requested that Domtar
conduct investigations and submit reports to the MPCA.
(Appendix A-2; B-2-3.) Domtar tendered the MPCA’s
request to Canadian General and the other insurers as a
“claim” and then commenced this action. (Appendix B-3.)
In this suit, Domtar claims that Canadian General insured
it under accident liability policies providing coverage from
October 1, 1956, through February 18, 1965. (Appendix A-3;
B-3.) Only one specific insurance policy issued by Canadian
General has been found which provided coverage to Domtar
prior to Domtar’s name change. Domtar’s address is stated as
“Sun Life Building, Montreal, P.Q.” The Policy Period is
from January 1, 1960, to January 1, 1963. (Appendix B-4.)
Property damage is provided by an Endorsement to that policy
under which the insurer agreed:
To pay on behalf of the Insured all sums which the
insured shall become obligated to pay .. . for
' These statutory sections are part of Minnesota’s Environmental
Response and Liability Act enacted in Minnesota in 1983, approximately
18 years after the last alleged Canadian General policy year.
5
damages because of damage to or destruction of
property caused by accident occurring during the
Policy Period and while this Endorsement is in force.
(Appendix B-4.)
The Liability Policy and Property Damage Endorsement were
both subject to an Exclusion for:
_. . any claim arising or existing by reason of any of
the following matters:
1. Accidents occurring outside Canada and the
United States of America.
(Appendix A-4.)
Domtar conducted both document discovery and
deposition discovery of Canadian General employees during
discovery on the jurisdictional issue. No underwriting files
from Domtar from 1956 to 1965 were discovered (Appendix
A-4; B-4) nor did current employees have knowledge of
Canadian General underwriting practices for the 1956 to 1965
time period. (Appendix B-13.) Deposition testimony indicated
Canadian General attempted not to insure risks in the U.S. It
was estimated that there would be no U.S. location or
operation for probably 99 percent of the insurer’s risks.
Canadian General’s casualty manager of 9 years could recall
only two situations where Canadian General agreed to cover
Canadian insureds with border operations which extended into
the United States. (Appendix A-13.) While a Canadian
General Vice President speculated that a 1960s underwriting
file would have included a description of the insured’s
operations, an estimate of sales broken down by various types
of operations, location of operations, a description of prior
6
claims history and inspection reports pertaining to the
insured’s main operations, (Appendix A-14, 15.), Domtar
produced no evidence that Canadian General considered past
operations of the demolished and sold tar plant in issuing
alleged policies for the 1956 to 1965 time period. (Appendix
B-13.)
By an Order and Memorandum filed on November 17,
1993, the Minnesota District Court denied Canadian General’s
motion to dismiss, finding there existed specific? personal
jurisdiction. (Appendix C.) With respect to the issue of
whether constitutionally sufficient minimum contacts had been
shown the trial court ruled:
Here, defendant Canadian General purposefully
directed actions toward the forum State of Minnesota
by issuing an indemnity policy covering claims
against Domtar in any state of the United States,
including Minnesota.
Domtar, Inc. v. Niagara Fire Ins. Co., No. CO-91-8218
(Minn.Dist.Ct., 2nd Jud. Dist., Nov. 17, 1993) (Order and
Memorandum), (Appendix C-6.). The trial court further
observed:
In an article entitled, Personal Jurisdiction Over Alien
408 (1984). Denil aiep teonsted Gave was quasdil fetledietion, Kaned
upon unrelated construction bonds issued by Insurance Company of
North America and an indemnity agreement between INA and Canadian
General. The Minnesota trial and Minnesota appellate courts which have
considered this matter specifically rejected the claim of general personal
jurisdiction over Canadian General, based on that transaction or any
other alleged Canadian General contacts with Minnesota. (Appendix A,
B and C.)
7
Rule, 26 Tort & Ins. L.J., 3 (1991), William C.
Hoffman concludes that numerous courts exercise
jurisdiction over alien insurance carriers on a basis
that appears to require less contact than the
Constitution generally requires.
Doi stot. Seinen ites. No. CO-91-8218
(Minn.Dist.Ct., 2nd Jud. Dist., Nov. 17, 1993) (Order and
Memorandum), (Appendix C-8.),
Under Minnesota law, an order denying a motion to
dismiss for lack of personal jurisdiction is regarded as a
determination of right and is immediately appealable. Stanek
v. API, Inc, 474 N.W.2d 829 (Minn.Ct.App. 1991).
_Canadian General timely perfected an appeal of the trial
court’s November 17, 1993 order to th Minesota Court of
Appeals. In its Appellant’s Brief datea ‘anuary 5, 1994,
Canadian General asked the Minnesota Court of Appeals to
determine:
Whether, in the absence of Minimal Contacts with the
State of Minnesota, the Trial Court may exercise
personal jurisdiction based upon a. territorial
exclusion clause in an insurance policy?
In a June 21, 1994, split decision the Minnesota Court of
Appeals affirmed the trial court’s order finding specific
jurisdiction, but on different grounds. Not relying on the
territorial coverage exclusion, the Minnesota Court of Appeals
held:
In the present case, as in AIU [AIU Ins. Co. v.
Superior Court, 222 Cal. Rptr. 880 (Cal. Ct. App.
1986)] the cause of action against Canadian General
arises out of Canadian General’s insuring of
Domtar’s assets and activities in Minnesota. We hold
8
that this is sufficient to allow a Minnesota court to
exercise personal jurisdiction over Canadian General.
Domtar, Inc. v. Niagara Fire Ins. Co,, 518 N.W.2d 58, 63
(Minn.Ct.App. 1994), (Appendix B-10.) One member of the
Minnesota Court of Appeals’ three judge panel (the Honorable
Harriet Lansing) dissented:
The evidence is undisputed that two years before
Canadian General first decided to insure Domtar, a
Canadian company, Domtar had sold its Minnesota
plant and no longer conducted operations in
Minnesota. Because Canadian General directed no
contacts toward Minnesota, the exercise of
jurisdiction violates long-standing jurisdictional
principles and disregards the enhanced jurisdictional
burden that applies when defendant is a foreign
national * * *
A defendant must have minimum contacts with the
forum state ‘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, 66 S.Ct. 154, 158,
90 L.Ed. 95 (1945). Canadian General’s contacts
with Minnesota are insufficient to establish either
general or specific jurisdiction, and I would reverse.
Domtar, Inc., 518 N.W.2d at 63, 65. (Appendix B-12, 14,
15.)
Canadian General timely petitioned the Minnesota
Supreme Court for discretionary review of the Minnesota
Court of Appeals’ decision as permitted by Minn.R.Civ.App.P.
117. In its Appellant’s Brief, Canadian General requested that
the Minnesota Supreme Court determine:
9
Whether, in asserting personal jurisdiction over a
Canadian insurer, the Due Process Requirement of
purposefully established contacts in the forum state
by the insurer is satisfied solely by its issuance of a
liability policy in Canada to a Canadian insured?
In a decision by four justices (three justices abstaining)
filed on June 16, 1995, the Minnesota Supreme Court affirmed
the Minnesota Court of Appeals’
jurisdiction existed:
Based on the information likely contained in
Canadian General’s 1960 underwriting file, we
conclude that Canadian General constructively knew
that Domtar had formerly operated a tar
manufacturing facility in Duluth. By deciding to
issue a general liability policy allegedly insuring
Domtar against liability arising from its Duluth tar
manufacturing operation, Canadian General
purposefully established the required contacts with
Minnesota. Furthermore, Minnesota is the situs of
the accident creating liability that Canadian General
purportedly agreed to defend Domtar against.
For these reasons, we hold that Domtar’s coverage
claim against Canadian General arises out of or
relates to Canadian General’s minimum contacts with
Minnesota, thereby supporting a Minnesota court’s
assertion of specific personal jurisdiction over
Canadian General in the present case.
Domtar, Inc. v. Niagara Fire Insurance Co., 533 N.W.2d at
33, 34 (Minn. 1995). (Appendix A-15.)
10
holding that specific
Canadian General timely petitioned the Minnesota
Supreine Court for rehearing as permitted by
Minn.R.Civ.App.P. 140. By order filed July 25, 1995, the
Minnesota Supreme Court denied Canadian General’s petition
for rehearing with respect to the June 16, 1995, decision.
(Appendix D-1.)
During the pendency of Canadian General’s appeal,
Domtar dismissed its claims without prejudice against eleven
of the other insurers and proceeded to trial of its claims
against Niagara Fire Insurance Company, Continental
Insurance Company, World Auxiliary Insurance Corporation
Limited and Certain Underwriters at Lloyd’s of London. By
order of the District Court, the trial proceedings were stayed
as to Canadian General, pending appeal on the jurisdictional
issue. Following a jury trial, Domtar obtained money
judgment of $2,837,679.70, as amended by subsequent order,
against Niagara Fire Insurance Company and Continental
Insurance Company, and a declaration of rights relative to the
trial defendants.
The decisions of this Court in examining state court
jurisdiction under the Due Process Clause have clearly and
repeatedly required a showing of ‘minimum contacts” for
personal jurisdiction. None of the decisions of this Court since
International Shoe Co, v, Washington, 326 U.S. 310 (1945)
have intimated that different and less stringent standards apply
when determining whether specific personal jurisdiction exists
over an alien corporation, nor that different jurisdictional
11
standards apply to insurance companies, domestic or foreign.
Due Process applies equally to all litigation defendants.
Since 1945, this Court’s decisions with respect to
personal jurisdiction have required a basic showing of
‘hain ebttonts*iasdig ddan eerie
first step to deciding jurisdictional questions. In Burger King
Corporation v. Rudzewicz, 471 U.S. 462 (1985) this Court
described the minimum contacts specific jurisdiction test for
claims arising out of, or relating to, a defendant’s activities in
the forum state:
..[T]he constitutional touchstone remains whether
the defendant purposefully established minimum
contacts in the forum State. International Shoe Co.
yv. Washington, supra, 326 U.S., at 316, 66 S.Ct., at
158. Although it has been argued that foreseeability
of causing injury in another State should be sufficient
to establish such contacts there when policy
considerations so require, the Court has consistently
held that this kind of foreseeability is not a “sufficient
benchmark for exercising personal jurisdiction.”
. 444
U.S. at 295, 100 S.Ct., at 566. Instead, ‘the
foreseeability that is critical to due process
analysis...is that the defendant’s conduct and
connection with the forum state are such that he
should reasonably anticipate being haled into court
there.” Id. at 297, 100 S.Ct. at 567.
471 U.S. at 474. The Court has repeatedly ruled that the
inquiry be directed at acts of the defendant. Thus, in World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980)
the Court stated:
12
... & State court may exercise personal jurisdiction
over a non-resident defendant only so long as there
exist ‘minimum contacts’ between the defendant and
the forum state.
444 US. at 291. In Hanson v. -Denckla, 357 U.S. 235 (1958)
the Court ruled:
... [It] is essential in each case that there be some act
by which the defendant purposefully avails itself of
the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its
laws.
357 U.S. at 253. Again, in Asahi Metal Ind. v. Superior Court
of California, 480 U.S. 102 (1987), the Court described the
required purposeful availment as follows:
The ‘substantial connection,’ Burger King, 471 U.S.
at 475, 105 S.Ct., at 2184; McGee v. Int'l, Life Ins.
Co., 355 U.S. at 233, 78 S.Ct., at 201, between the
defendant and the forum state necessary for a finding
of minimum contacts must come about by an action
of the defendant purposefully directed toward the
forum state.
480 U.S. at 112. In Burger King Corp. the Court applied this
test to a jurisdictional dispute arising out of a contractual
relationship and ruled:
If the question is whether an individual’s contract
with an out-of-state party alone can automatically
establish sufficient minimum contracts in the other
party’s home forum, we believe the answer clearly is
that it cannot.
13
471 U.S. at 478.
Further, the Court has held that ‘purposeful availment”
cannot be established by the unilateral activity of another party
or a third person. See, e.g. Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408° (1984); World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).
The Minnesota Supreme Court acknowledged in
its opinion that essentially Canadian General had no
direct contact with Minnesota. (Appendix A-4.)
Canadian General had no office, agents, property or
business in the state. It neither solicited sales nor
sold insurance to residents of Minnesota. In short,
Canadian General had no presence in Minnesota for
jurisdictional purposes.
b) eae ta :
issuance of _a_Canadian insurance policy does not ith Mi
Under the minimal contacts standard set forth by
the Court, clearly issuance of an insurance policy in
Canada to a Canadian insured without more is
insufficient for jurisdictional purposes. Implicitly
recognizing the lack of contacts, the Minnesota
Supreme Court seized on constitutionally irrelevant
facts and speculation to provide a rationale. First, the
Court speculated that Canadian General
‘constructively knew” that Domtar had operated a
tar plant in Minnesota. The Court then asserts that
this constructive knowledge transforms the issuance
of the policy into purposefully establishing ‘the
14
required minimum contacts with Minnesota” without
a “Due Process” based rationale. (Appendix A-15.)
Second, the Minnesota Supreme Court, referring
to the Court of Appeals’ decision, also reasoned that
in 1960 a-known :possibility existed that Domtar
could be liable for groundwater contamination under
Minnesota law, (Appendix A-14.) and therefore
would lead Canadian General to knowledge of the
past tar plant operations and the risk of liability.
While this risk to Domtar may or may not have
existed, the facts are that Domtar is not seeking
coverage for common law liability which existed at
the time of the policy, but rather for response actions
under a statute enacted in 1983, long after the policy
period. The policy is an accident, rather than
occurrence, policy.’ Thus, the policy itself is not a
contact with Minnesota because Minnesota
operations had already ceased at the time of the
policy.
> The policy at issue was an “accident triggered” liability policy.
(Appendix B-4.) -As of 1956, no Minnesota reported decisions had held
that Minnesota law would impose liability on an accident liability insurer
for “accidents” allegedly happening before the inception of the policy’s
coverage period. Prior to 1966 (when new “occurrence” triggering
language was added to the standard forms) the insurance industry in
general had interpreted “accident” policies to cover only events which
took place both without the intent or knowledge of the insured and which
were referable to a fixed time within the policy’s coverage period. See E.
Joshua Rosenkranz, Note,
Looking Glass, 74 Geo. L.J. 1237, 1241-1242 (1986).
Many courts from other jurisdictions had agreed in well-reasoned
opinions. See ¢.g. Leggett v. Home Indemnity Co., 461 F.2d 257 (10th
Cir. 1972); Foreman vy. Jordan, 131 So.2d 796 (La.CtApp. 1961);
NY.8.24 953 ( (N.Y App Div. 1992).
15
LO
6) : eae
a | casiadiction
The Minnesota Supreme Court disclaimed
relying on territory of coverage as a basis for
jurisdiction. Even if it had, however, it would be
equally unwarranted to find specific jurisdiction based
upon the territorial coverage exclusion. In Rush v.
Savchuk, 444 U.S. 320 (1980), this Court drew a
distinction between the operative facts of an
an insured and the ‘fictitious presence” of the
insurer’s obligation to defend the insured in
Minnesota and 49 other states and held that quasi in
rem jurisdiction could not be asserted over the
insured, based upon the insurer’s duty to defend.
An insurer’s failure to structure its policy to
prevent the possibility of having to defend covered
third party claims in locations which are beyond the
geographic scope of the insurer’s own business
operations (usually because of an insured’s unilateral
decision to locate the risk) cannot be jurisdictionally
equated with the ‘purposeful availment” which
results from an insurer’s own decision to enter a
forum market by selling its product to forum
residents. The distributor’s and retailer’s warranties
in World-Wide Volkswagen Corp. Woodson, 444
U.S. 286 (1980) did not stop at the New Jersey
border. Nevertheless, despite the ‘transitory’ and
national scope of the defendants’ assumed
obligations, this Court found that they had
insufficient minimum contacts with the Oklahoma
16
forum to support jurisdiction by the Oklahoma
courts.
If jurisdiction may rest on the ‘territory of
coverage” of an insurance policy, then a new and
different basis for personal jurisdiction must be
articulated. Mere territory of coverage cannot and
does not meet the ‘purposeful availment” standard
- this Court has set forth in its decisions to date.
The Minnesota Supreme Court also ruled that a
Minnesota court’s assertion of specific personal
jurisdiction over Canadian General in this case would
comport with traditional notions of fair play and
substantial justice. Domtar, Inc., 533 N.W. 2d at 34.
(Appendix A-15-17.) This ruling was in conflict with
this Court’s decision in Asahi Metal Industry Co.,
Ltd. This case, as in Asahi Metal Industry Co., Ltd.,
involves an alien defendant which will be substantially
burdened by being forced to submit to a foreign
nation’s judicial system. Like the dispute in Asahi
Metal Industry Co., Ltd., the forum state’s interest in
this case is considerably diminished by the fact that it
is primarily about an indemnity dispute between two
foreign nationals as to which the state is not a party.
Domtar’s interest in obtaining convenient and
effective relief could have been easily vindicated if it
had sued all of the parties in Canada, the nation of its
citizenship, the nation where all of the alleged
policies were issued, and the nation where many of
the witnesses who will be required to testify
17
concerning insurance coverage issues live. As in
Asahi Metal Industry Co., Ltd., the interests of the
‘several states,” in addition to Minnesota, in the
efficient judicial resolution of the dispute and
advancement of substantive policies must give way to
a careful inquiry into the procedural and substantive
policies of other nations and
... an unwillingness to find the serious
burdens on an alien defendant outweighed
by minimal interests on the part of the
plaintiff or the forum state.
480 U:S. at 115.
Il. Thi resents Im
Law h nstitution
Settled by this Court.
Since this Court decided International Shoe Co. in 1945
and announced the ‘minimum contacts” test, this Court has
seldom applied it in jurisdictional disputes involving out-of-
state insurers. In Travelers Health Ass’n v. Commonwealth of
Va., 339 U.S. 643 (1950) this Court held that Virginia could
enjoin an out-of-state insurer’s violations of the Virginia Blue
Sky Law where the insurer had “Systematically and widely”
delivered insurance certificates into that state, based on the
recommendations of Virginia residents. Similarly, in McGee
v. Int'l, Life Insurance Co., 355 U.S. 220 (1957) this Court
applied the minimum contacts test to hold that California
courts could exercise jurisdiction over a life insurance dispute
between a California policy claimant and a Texas insurer
where the policy was delivered in California, premiums were
regularly paid from there, and the alleged insured was a
California resident when he died.
18
The present case includes issues which are far beyond the
scope of these prior decisions, issues which are becoming
increasingly common in the important insurance field of
environmental liability coverage. How is the ‘minimum
contacts” test to be applied where none of the parties are
residents of the forum ‘state and entered their insurance
contract beyond its borders? What, if any, is the significance
of a territorial coverage provision? How should the ‘minimum
contacts” test be applied where the risk-producing activity was
no longer located in the forum state at the time the policy was
written? How should (or should) the ‘minimum contacts” test
be applied to alien insurers which contract with other alien
corporations beyond the borders of the United States?
In Asahi Metal Industry Co., Ltd., a jurisdictional dispute
arising from a foreign indemnity contract, this Court warned
that in every case involving jurisdiction over an alien defendant
careful inquiry is required in evaluating the reasonableness of
the assertion of personal jurisdiction and that great care should
be exercised when extending our notions of personal
jurisdiction into the international field.
Jurisdiction over Canadian General is based on the
Minnesota Supreme Court’s reasoning that Canadian
General’s obligation to defend and indemnify Domtar for
Domtar’s obligations under environmental cleanup statutes
evidences sufficient minimal contacts for jurisdictional
purposes. Canadian General disputes any such obligation
exists. Does it follow, then, that if the Minnesota court
determines no such obligation exists that the Minnesota court
had no jurisdiction to make that determination? Or, in the
alternative, does the Minnesota court acquire jurisdiction to
determine such an obligation exists when the very existence of
that obligation is the ‘touchstone” upon which jurisdiction
must rest?
Had the identical Request for Response Action been made
against Domtar in Wisconsin and Domtar had brought its
19
claims against Canadian General in Wisconsin, there would be
no ‘damage” under Wisconsin law, and there is no policy
obligation to defend for statutorily imposed environmental
obligations. Would the Wisconsin courts then have no
jurisdiction? Compare City of Edgerton v. General Casualty
Company of Wisconsin, 517 N.W.2d 463 (Wis. 1994) with
IVLINNESOLS VATE AY J A feayveiel >
Indemnity Co., 457 N.W.25 175 (Minn. 1990). Due Pr
should not depend on the state where suit is brought or what
allegation a claimant chooses to make in its lawsuit.
Constitutional Due Process must have as its foundation the
contact between the defendant and the forum, not the
plaintiff's claim and the forum. Rush v. Savchuk, 444 U.S.
320 (1980). If the constitutional touchstone for jurisdiction
over insurer defendants is to be something other than minimal
contacts, that standard needs to be articulated by this Court.
The present case now presents the Court with the
opportunity to give courts of the United States guidance as to
how they are to apply the ‘minimum contacts” facet of the
jurisdictional test to alien insurers in insurance disputes which
are brought over our borders. It is respectfully submitted that
the decision of the Minnesota Supreme Court to exercise
jurisdiction on the facts of the present case is not without
grave importance to federal commercial and political relations
involving Canada and other foreign nations with business
relations with the United States.
IL The § 1 Federal Court Decisi in Confl
Over Issues Presented by the Present Case.
Recently, the Supreme Court of New Jersey has held that
personal jurisdiction could not be asserted over Canadian
General and certain other alien and out-of-state insurers with
respect to an environmental liability coverage dispute, despite
the fact that the applicable policies contained United States
20
and Canada territory coverage provisions where the insurers
had not otherwise purposefully availed themselves of the
benefits of the forum state’s jurisdiction and the alleged
insureds were out-of-state residents. Waste Management, Inc.
y. Royal Insurance Co., 649 A.2d 379 (NJ. 1994), cert.
denied, 115 S.Ct. 1175 (1995). In the present case, the
Minnesota Supreme Court has now held that Minnesota’s
jurisdictional reach over Canadian General involving a dispute
between alien citizens, under an alleged alien insurance
contract involving a risk not located in Minnesota at the time
of contracting, is broader than that which could be exercised in
New Jersey under the same federal constitution.
Although the Minnesota Supreme Court eschewed
reliance on the territorial coverage exclusion, it is submitted
that the federal decision it chiefly relies upon (Farmers Ins.
Exchange v. Portage La Prairie Mutual Ins. Co., 907 F.2d 911
(9th Cir. 1990)) derives its finding of purposeful availment
entirely from the presence of a territory of coverage clause.
The decisions of other federal and state courts have similarly
differed over the jurisdictional significance of territorial
coverage provisions under this Court’s ‘minimum contacts”
test. Compare, ¢.g., Rossman v. State Farm Mut. Auto. Ins.
Co., 832 F.2d 282 (4th Cir. 1987) and Payne v. Motorists’
Mutual Ins. Cos., 4 F.3d 452 (6th Cir. 1993) (both relying
upon territory of coverage provisions in auto liability policies)
with Meyer v. Auto Club Ins. Assoc., 492 So.2d 1314 (Fla.
1986) (rejecting territorial coverage clause jurisdictional
argument, based upon World-Wide Volkswagen) and Batton
v. Tennessee Farmers Mut. Ins. Co., 736 P.2d 2 (Ariz. 1987)
(issuing an insurance policy providing nationwide coverage is
no different than selling a product, such as a car, with a
warranty that it is fit for its intended use and with the
knowledge that it may be used nationwide. World-Wi
Volkswagen establishes that jurisdiction is improper in either
case).
21
CONCLUSION
For the foregoing reasons, we respectfully submit that the
Court should grant a writ of certiorari to review the decision
of the Minnesota Supreme Court.
Respectfully submitted,
Larry A. Hanson, Esq.
Counsel of Record for Petitioner
Of MOORE, COSTELLO & HART, P.L.L.P. r
1400 Norwest Center
55 East Fifth Street
St. Paul, Minnesota 55101-1792 4
Telephone: (612) 227-7683
Leonard W. Glewwe, Esq.
Of MOORE, COSTELLO & HART, P.L.L.P. |
Of Counsel
22
24
e
f
INDEX TO APPENDIX
Judgment of the Minnesota Supreme Court filed
June 16, 1995
Judgment of the Minnesota Court of Appeals filed
June 21, 1994
Order and Memorandum of the Minnesota District Court,
Second Judicial District filed
November 17, 1993 Appendix C
Order of the Minnesota Supreme Court Denying
Canadian General Insurance Company's Petition for
Rehearing filed July 25, 1995 Appendix D
STATE OF MINNESOTA
IN SUPREME COURT
CX-93-2449
Court of Appeals Keith, C.J.
Took no part, Coyne, Gardebring & Stringer, JJ.
Domtar, Inc.,
Respondent,
VS.
Niagara Fire Insurance Co., et al.,
Defendants,
and
Canadian General Insurance Co., petitioner
Filed: June 16, 1995
Appellant. Office of Appellate Courts
SYLLABUS
A Canadian insurer purposefully established minimum
contacts with Minnesota by allegedly agreeing to defend its
insured against liability arising from an insured risk located in
Minnesota.
Because Minnesota is the situs of the accident creating
liability that the Canadian insurer allegedly agreed to defend its
insured against, the insured's coverage claim against the
insurer arises out of or relates to the insurer's minimum
A-1
contacts with Minnesota, thereby supporting the assertion of
specific personal jurisdiction over the insurer in Minnesota.
Subjecting the Canadian insurer to specific personal
jurisdiction in Minnesota is reasonable.
Affirmed.
Heard, considered and decided by the court en banc.
OPINION
KEITH, Chief Justice.
The Minnesota Pollution Control Agency ("MPCA")
issued to Domtar, Inc. a Request For Response Action
("RFRA") relating to the release or threatened release of
hazardous substances at an environmentally contaminated
property located in Duluth, Minnesota. Domtar commenced
against its alleged insurers the declaratory judgment action
underlying this appeal. Domtar sought a judgment declaring
that defendants are obliged to defend Domtar against the
MPCA's allegations and to reimburse Domtar for investigation
costs it has incurred.
Canadian General Insurance Company, one of three
alleged primary insurers in the underlying declaratory
judgment action, moved to dismiss Domtar’s claims based on
lack of personal jurisdiction. The district court denied
Canadian General's motion, concluding that Canadian General
was subject to personal jurisdiction in Minnesota. The
Minnesota Court of Appeals affirmed. Domtar, Inc. v.
Niagara Fire Ins. Co., 518 N.W.2d 58, 63 (Minn. App. 1994).
Because we hold that Canadian General is subject to specific
personal jurisdiction in Minnesota, we affirm.
The St. Louis River/Interlake/Duluth Tar Site ("the Site")
is located in the city of Duluth, St. Louis County, Minnesota.
A-2
The Site, which encompasses approximately 230 acres of land
and river embayment, is located on the north bank of the St.
Louis River, approximately four miles upstream from Lake
Superior.
For decades, various entities used parts of the Site for
industrial purposes. ‘ In 1924, Dominion Tar and Chemical
Company, Ltd., which ultimately changed its name in 1977 to
Domtar, Inc. (“Domtar"), began operating a tar processing or
manufacturing plant on a part of the Site. American Tar and
Chemical Company, a subsidiary of Dominion Tar, was
created in 1930 and continued operating the tar plant until
1948, when it ceased manufacturing operations. Domtar sold
its part of the Site in 1955.
In August 1987, the MPCA initiated a remedial
investigation of the Site. The MPCA determined that
hazardous substances had been released or threatened to be
released at the Site, thereby contaminating soil and
groundwater. To further evaluate the environmental and
health effects of the contamination and to select the
appropriate remediation technology, the MPCA concluded
that additional investigations of the extent of the
contamination needed to be conducted. Therefore, after
identifying Domtar as a party responsible for the release or
threatened release of hazardous substances at part of the Site,
the MPCA issued to Domtar a RFRA.
Domtar, incorporated under the laws of Canada with its
principal place of business located in Montreal, Quebec,
Canada, then brought an action against its primary and excess
general liability insurers, including Canadian General. Domtar
alleges that Canadian General issued to Domtar general
liability policies whose coverage periods extended from
October 1, 1956 through February 18, 1965. Canadian
General has not retained any of Domtar’s applications for
insurance coverage, any of the policies issued to Domtar, or
A-3
any of the underwriting materials presumably gathered or
generated at the time it issued the policies to Domtar.
Through discovery efforts, one Canadian General policy
has been located, allegedly insuring Domtar against liability
from January 1, 1960 through January 1, 1963. The policy
provides comprehensive generat liability coverage for claims
arising out of accidents occurring in "Canada and the United
States of America."’ Although the parties were able to locate
only one policy, covering 1960-63, that policy indicates that it
is a replacement or renewal of a prior policy. The district
court concluded that circumstantial evidence indicated that
Canadian General insured Domtar from 1956-1965.”
Canadian General is a Canadian corporation whose
principal place of business is located in Scarborough, Ontario,
Canada. Canadian General is not now and never has been
licensed to do business in Minnesota. Canadian General
asserts that is does not maintain, and never has maintained,
any offices, employees, or agents in Minnesota. Canadian
General asserts that it has no bank accounts in Minnesota and
owns no real or personal property in Minnesota. Finally,
' The territory of coverage is expressed negatively, as an exclusion.
Specifically, the policy provides, "This policy shall have no application
with respect to and shall not extend to nor cover any claim arising or
existing by reason of * * * 1. Accidents occurring outside Canada and the
United States of America.”
2 During his deposition, L.B. Bowden, Canadian General's
Executive Vice-President, acknowledged that policies issued in 1960
typically covered a term of three years. Bowden further stated that he
would expect the prior policy, which was allegedly renewed by the
discovered policy, to cover the three years preceding the discovered 1960
policy. During another deposition, Robert W. Ross, Canadian General's
former Vice-President in Toronto, stated that he expected the prior policy
probably would have been the "same kind’ as the found policy that
replaced it.
A-4
Canadian General asserts that it has not issued any policies of
insurance to any residents of Minnesota.
After the parties completed discovery on the issue of
personal jurisdiction, the district court denied Canadian
General's motion to dismiss for lack of personal jurisdiction.
The court held that Canadian General created a relationship
with Minnesota by contracting to insure Domtar against
liabilities in Minnesota, and that relationship provided
Minnesota courts with personal jurisdiction over Canadian
General in suits arising out of or relating to that relationship.
In a split decision, the court of appeals affirmed, holding
Canadian General subject to personal jurisdiction in Minnesota
because Domtar’s cause of action against Canadian General
arose out of Canadian General's agreement to insure Domtar’s
Minnesota activities. Domtar, Inc., 518 N.W.2d at 63. The
court of appeals reasoned that Canadian General's
underwriting practice should have alerted it to the possibility
that Domtar could be sued in Minnesota for environmental
contamination caused by a manufacturing facility that Domtar
had operated in the state for 30 years. Id. at 62. Furthermore,
the court of appeals reasoned, "Canadian General should have
expected coverage disputes to be resolved in the same forum
as the underlying action." Id. In its appeal to this court,
Canadian General contends that its contacts with Minnesota
are constitutionally insufficient to subject it to personal
jurisdiction in Minnesota.
I.
To sustain personal jurisdiction over a foreign
corporation, this court must find both that personal
jurisdiction is authorized by the Minnesota long-arm statute
and that the exercise of such jurisdiction does not violate the
due process requirement that the nonresident defendant have
certain "minimum contacts" with the forum state. Minn. Stat.
A-5
§ 543.19 (1994); World Wide Volkswagen Corp, v. Woodson,
444 U.S. 286, 291 (1980); International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). The quality of these
contacts must be such that the assertion of jurisdiction
comports with "traditional notions of fair play and substantial
justice.” International Shoe; 326'U.S.-at 316 (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (1940)).
The Minnesota long-arm statute, Minn. Stat. § 543.19
(1994), permits courts to assert jurisdiction over defendants to
the extent that federal constitutional requirements of due
process will allow. Valspar Corp. v. Lukken Color Corp., 495
N.W.2d 408, 410 (Minn. 1992). If the personal jurisdiction
requirements of the federal constitution are met, the
requirements of the long-arm statute will necessarily also be
met. Id, at 411. Therefore, we need only consider whether it
is consistent with federal constitutional requirements of due
process for a Minnesota court to assert personal jurisdiction
over Canadian General. Id.
The Due Process clause of the Fourteenth Amendment
limits the power of a state court to exert personal jurisdiction
over a nonresident defendant. Kulko v. Superior Court of
California, 436 U.S. 84, 91 (1978). To satisfy federal due
process, a plaintiff must demonstrate that "the defendant
purposefully established ‘minimum contacts’ in the forum
State."’ Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474
> Domtar's brief discusses Canadian General's various contacts with
the United States in general, as opposed to its contacts with the specific
forum state of Minnesota. This discussion is too general to be relevant in
with Minnesota. The foreign defendant's relevant contacts are with the
forum state, not the United States in general. Cf, United Elec. Workers
vy. 163 Pleasant Street Corp., 960 F.2d 1080, 1085 (ist Cir. 1992)
(explaining that when a federal court's subject matter jurisdiction is
founded upon a federal question, the Due Process Clause of the Fifth
Amendment, rather than the Fourteenth Amendment, establishes the
(...continued)
A-6
(1985) (quoting International Shoe, 326 U.S. at 316). Once
the plaintiff establishes that the defendant has minimum
contacts with the forum, the defendant can still defeat
jurisdiction if it can show that the exercise of jurisdiction is not
reasonable. See Asahi Metal Indus. Co. v. Superior Court of
California, 480 U.S. 102, 113 (4987); Burger King, 471 U.S.
at 477.
The minimum contacts requirement may be satisfied in
two different contexts. These two contexts are referred to as
"general" personal jurisdiction and oe a
jurisdiction. licopt nales di bi
466 U.S. 408, 414 n.8 (1984), Valspar Corp., 495 N.W. 2d at
41i.
Il.
General personal jurisdiction exists when a nonresident
defendant's contacts with the forum state are so substantial
and are of such a nature that the state may assert jurisdiction
over the defendant even for causes of action unrelated to the
defendant's contacts with the forum state. See Valspar Corp.,
495 N.W.2d at 411. Before a court may constitutionally
assert general jurisdiction over a nonresident defendant, the
constitutional limits of the court's power to assert personal jurisdiction
over a foreign defendant, and under the Fifth Amendment, that power is
geographically expanded, authorizing personal jurisdiction over alien
defendants in federal court based on minimum contacts with the United
States, rather than on the contacts between the defendant and the State in
which the federal court sits). See also, Asahi Metal Indus., 480 U.S. at
113 (stating "We have no occasion here to determine whether Congress
could, consistent with the Due Process Clause of the Fifth Amendment,
on the aggregate of national contacts, rather than on the contacts between
the defendant and the State in which the federal court sits.") (emphasis in
original) (citations omitted).
A-7
defendant must have “continuous and systematic" contacts
with the forum state. Helicopteros Nacionales, 466 US. at
415-16; Real Properties, Inc. v. Mission Ins. Co., 427 N.W.2d
665, 669 (Minn. 1988).
Domtar contends that Canadian General is subject to
general personal jurisdiction in-Minnesota. To support its
contention, Domtar primarily relies on Canadian General's
involvement in an unrelated construction project in Minnesota
and on its involvement in litigation attending that project. We
conclude that Canadian General's activities within Minnesota
were insufficient to constitute "continuous and systematic"
activity. Consequently, Canadian General's involvement in the
construction project does not support general personal
jurisdiction over Canadian General in a Minnesota court.
Il.
Domtar’s case necessarily depends on the presence or
absence of specific personal jurisdiction. Specific personal
jurisdiction exists when the defendant's contacts with the
forum state are limited, yet connected with the plaintiffs claim
such that the claim arises out of or relates to the defendant's
contacts with the forum. See Burger King, 471 U.S. at 472;
466 U.S. at 414. A single contact
with the forum can be sufficient if the cause of action arises
out of that contact. McGee v. International Life Ins. Co., 355
U.S. 220, 223 (1957).
When a claim arises out of a contract that has a
"substantial connection" with the forum state, specific
jurisdiction exists. Id. at 223. In determining whether a
substantial connection exists between the contract and the
forum state, the United States Supreme Court has emphasized
that the formation of a contract is an intermediate step in the
process of negotiation and future performance. Burger King,
A-8
471 U.S. at 479. In Burger King Corp. v. Rudzewicz, the
Court explained
[A] "contract" is “ordinarily but an intermediate step
serving to tie up prior business negotiations with
future consequences which themselves are the real
object of the business transaction." * * * It is these
factors -- prior negotiations and contemplated future
consequences, along with the terms of the contract
and the parties’ actual course of dealing -- that must
be evaluated in determining whether the defendant
purposefully established minimum contacts within the
forum.
Id. (quoting Hoopeston Canning Co. v. Cullen, 318 U.S. 313,
317 (1943)).
Domtar urges this court to conclude that Minnesota
courts may assert specific personal jurisdiction over Canadian
General based on its alleged agreement to insure Domtar for
liability arising out of its Minnesota tar manufacturing
operations. Several courts have concluded that a court may
assert specific personal jurisdiction over a nonresident insurer
when (1) the insurer knows of its insured's contact with the
forum; (2) the risk insured against transpires in the forum
state; and (3) the forum state is not excluded from the
geographic coverage of the insurance policy.‘
‘The “territory-of-coverage rule" generally provides that, in
exercising specific personal jurisdiction over nonresident insurance
companies, courts infer the necessary contact from policy language
defining the territory of coverage. William C. Hoffman, “Personal
Jurisdiction Over Alien Insurance Companies: The Territory-of-Coverage
Rule, * 26 Tort & Ins. L. J. 703 (1991). In short, if the geographic scope
of the coverage includes the forum state, then the court, having
jurisdiction over the insured, may exercise jurisdiction over the insurer as
well. Id. Hoffman's article raises, but fails to answer, the question of
(...continued)
A-9
For example, in Farmers Ins. Exch. v. Portage La Prairie
Mut. Ins. Co., the Ninth Circuit Court of Appeals held that a
Montana court had specific personal jurisdiction over a
Canadian insurer whose Canadian insured was involved in a
Montana car accident. 907 F.2d 911, 913 (9th Cir. 1990). In
that case, the dispute resulted -from-a-single-vehicle accident
that occurred in Montana, The owner of the car, John
Kraemer, and his wife Claudia, resided in Alberta, Canada at
the time of the accident. The Kraemers were insured by
Portage La Prairie Insurance Company, a Canadian insurer.
At the time of the accident, the Kraemers were passengers in
their own car, and Lisa Lorango was driving the car with their
consent. Lorango, the driver, was insured by Farmers
Insurance, a California insurer. Claudia Kraemer was injured
in the accident. Although both Farmers and Portage were
purportedly obligated to provide liability coverage, only
Farmers provided coverage to Claudia Kraemer. Farmers,
purportedly an excess insurer, brought an action against
Portage, as primary insurer, in Montana federal district court
whether the territory-of-coverage rule requires that the event generating
the claim against the insurer occur in the forum state. See id. at 715. It
is difficult to understand how a court could conclude that specific
jurisdiction over a nonresident defendant exists when the forum is not the
situs of the injury, because in such a case, the plaintiffs claim would not
arise from or relate to the defendant's forum contacts. See, ¢.g., Travelers
Indem, Co, v. Calvert Fire Ins. Co., 798 F.2d 826 (Sth Cir. 1986)
(holding in case where vessel damage occurred in international waters off
the Panama Canal, foreign insurance company that provided liability
insurance on vessel lacked sufficient minimum contacts with Louisiana
forum to be subject to personal jurisdiction in the forum). Nevertheless,
in the present case, because the allegedly covered risk transpired in
Minnesota, we need not address the issue of whether a mere territory of
coverage clause, without more, is constitutionally sufficient to support
personal jurisdiction over a nonresident insurer.
A-10
seeking declaratory relief and damages for Portage's refusal to
reimburse Farmers.
Because Portage's insurance policy coverage extended
into Montana, and because an insured event resulted in
litigation in Montana, the court concluded that Portage had
purposefully availed itself of the privilege of conducting
activities in the forum state. Id., at 913. The court reasoned
that personal jurisdiction over Portage derived from its
contractual obligation to indemnify and defend its insured, a
duty that foreseeably required litigation in any forum where
the insured risk traveled. Id, at 914.
The court explained that the Supreme Court's decision in
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286
(1980), did not preclude the exercise of personal jurisdiction
over an insurer whose only contact with the forum state is the
issuance of an insurance policy covering an accident that
occurred in the forum state. Farmers Ins. Exch., 907 F.2d at
913. In World-Wide Volkswagen, the plaintiffs, who had
purchased an automobile from a New York dealer and
distributor, sued the dealer and distributor in Oklahoma after
being involved in a collision in Oklahoma. Id, at 288. The
Supreme Court held that the mobility of the automobile and
the defendants’ ability to foresee its movement to other states
were not enough to satisfy the requirements of due process.
Id. at 297-98. Nothing about the defendants’ conduct
indicated that it was willing to be called into court in the
foreign state. Id. at 298. The defendants’ only connection
with Oklahoma was the result of the plaintiffs’ unilateral act of
driving the car there. Id, at 295. Thus, the Oklahoma court
could not constitutionally assert personal jurisdiction over the
nonresident defendants. Id. at 299.
Unlike the automobile sellers in World-Wide Volkswagen,
the court in Farmers Ins. Exch. reasoned, liability insurers
contract to defend and indemnify the insured for claims that
will foreseeably result in litigation in foreign states. 907 F.2d
A-11
at 914. Thus, litigation requiring the presence of the insurer is
not only foreseeable, but it is purposefully contracted for by
the insurer. Id. Moreover, unlike a product seller or
distributor, an insurer has the contractual ability to control the
territory into which its "product" -- the indemnification and
defense of claims -- will travel. - Id. If Portage wished to avoid
suit in Montana, it could have excluded that state from the
policy territory defined in the policy. Id. Because Portage
controlled its own amenability to suit, the court held that
Portage purposefully availed itself of the Montana forum when
it contracted to indemnify and defend against claims arising
there. Id.
The approach of asserting personal jurisdiction over
insurance companies exemplified by Farmers Ins. Exch.
faithfully observes the Supreme Court's emphasis in contract
cases on the future consequences contemplated by the parties
when executing the contract. In the general liability insurance
* Accord Payne vy. Motorists’ Mut. Ins. Cos,, 4 F.3d 452 (6th Cir.
1993) (holding, in action brought by motorists injured in accident
occurring in Tennessee, suing as third-party beneficiaries of insured's
insurance contract, Tennessee court could assert personal jurisdiction
over Ohio insurer); Rossman v. State Farm Mut. Auto. Ins. Co., 832 F.2d
282 (4th Cir. 1987) (holding Virginia court could assert personal
jurisdiction over Illinois insurance company based on Illinois insured's
accident in Virginia); Szalay vy. Handcock, 819 S.W.2d 684 (Ark. 1991)
(following Farmers Ins. Exch. and Rossman, the court held that an
insurance company based solely on insurance company's obligation to
provide coverage for claims arising in Arkansas, a state within the
policy's territorial coverage); N.J. Auto. Full Ins. Underwriting Ass'n v.
Independent Fire Ins. Co., 600 A.2d 1243 (N.J. Super. Ct. Ch. Div. 1991)
(holding contractual commitment by nonresident insurer to defend its
insured against claims arising out of accidents occurring in New Jersey
constituted sufficient contact with New Jersey to subject insurer to suit in
New Jersey when its insured was involved in accident in New Jersey and
that accident generated third-party claim).
A-12
context, the parties contemplate that the insurer will defend
and indemnify the insured. Further, the defense is presumably
contemplated to occur where the insured is sued.
In cases following the approach exemplified by Farmers
Ins. Exch., the insurer must know of its insured's contact with
the forum state before the court will-conclude that the insurer
purposefully established minimum contacts with the forum
state. In 1956, at the earliest, Canadian General issued its first
liability policy purportedly covering Domtar's operations in
Minnesota. This was 7 to 8 years after Domtar’s subsidiary
ceased manufacturing operations at the tar plant and two years
after Domtar’s subsidiary sold its part of the Site. Thus,
Canadian General maintains that it did not know of Domtar's
Duluth tar manufacturing operations at the time it first insured
Domtar.
In evaluating whether Canadian General knew of
Domtar’s Duluth tar manufacturing operation, we note that an
insurer has a commercial interest in knowing how, and to what
degree, its insured has contacts with the forum state. See Eli
Lilly and Co. v. Home Ins. Co., 794 F.2d 710, 721 (D.C. Cir.
1986) (stating that insurers have a commercial interest in
knowing where an insured risk is located so that the insurer
can accurately estimate the liability risks and appropriately
adjust the policy premium) cert. denied, Falcon Ins. Co. v. Eli
Lilly and Co., 479 U.S. 1060 (1987). To fix an appropriate
premium, an insurer usually requires information regarding the
insured's activities. Id. at 720-21.
Canadian General's contemporary underwriting practice
involves ascertaining the extent of a prospective insured's
activities in the United States and then deciding whether to
accept those risks and what premium to charge. Since 1984,
all risks located in the United States have required approval
before Canadian General will issue an insurance policy
covering the United States risk. Canadian General's Casualty
Manager recalls only two instances since 1984 in which
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Canadian General knowingly covered an insured's operations
in the United States.
Domtar’s brief and many exhibits in the record discuss
Domtar’s business operations throughout the United States
during the alleged policy period. Canadian General's
conservative approach to insuring United States risks supports
the conclusion that Canadian General would have sought to
discover the extent of Domtar’s operations in the United States
before issuing a general liability policy to Domtar.
Furthermore, as the court of appeals indicated, the possibility
that a manufacturer, such as Domtar, could be liable for
groundwater contamination and responsible for cleaning up
the pollution has been recognized in Minnesota since the late
1800's. Domtar, Inc., 518 N.W.2d at 62 (citing Minnesota
Mining & Mfg. v. Travelers Indem. Co., 457 N.W.2d 175, 183
(Minn. 1990)). Thus, before issuing a general liability policy
to Domtar, Canadian General presumably would have sought
to discover the extent and nature of Domtar's past operations
in the United States and, thereby, would have discovered
Domtar's former ownership of the tar manufacturing plant in
Duluth.
Canadian General has not retained any of Domtar's
applications for insurance coverage, any of the policies issued
to Domtar, or any of the underwriting materials presumably
gathered or generated at the time it issued the policies to
Domtar. Nevertheless, Canadian General's Executive Vice-
President speculated that the 1960 underwriting file on
Domtar would likely have included a description of Domtar's
© Domtar’s business operations in Minnesota are only indirectly
relevant to determining whether Canadian General has sufficient
minimum contacts in Minnesota. That is, they are relevant only in
evaluating whether Canadian General knew it was insuring Domtar's
Minnesota tar manufacturing operations and, thereby, purposefully
established minimum contacts in Minnesota.
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operations, an estimate of Domtar's sales by type of operation,
the location of Domtar’s operations, a description of Domtar's
prior claims history, inspection reports pertaining to Domtar's
operations and possibly a breakdown of Domtar’s Canadian
and U.S. sales.
Based on the information ‘likely contained in Canadian
General's 1960 underwriting file, we conclude that Canadian
General constructively knew that Domtar had formerly
operated a tar manufacturing facility in Duluth. By deciding to
issue a general liability policy allegedly insuring Domtar
against liability arising from its Duluth tar manufacturing
operation, Canadian General purposefully established the
required minimum contacts with Minnesota. Furthermore,
Minnesota is the situs of the accident creating liability that
Canadian General purportedly agreed to defend Domtar
against.
For these reasons, we hold that Domtar’s coverage claim
against Canadian General arises out of or relates to Canadian
General's minimum contacts with Minnesota, thereby
supporting a Minnesota court's assertion of specific personal
jurisdiction over Canadian General in the present case.
IV.
Finally, we must determine whether a Minnesota court's
assertion of specific personal jurisdiction over Canadian
General would comport with "traditional notions of fair play
and substantial justice." International Shoe Co. v.
Washington, 326 U.S. at 320. The concept of "fair play and
substantial justice" can defeat the reasonableness of
jurisdiction even if the defendant has purposefully engaged in
forum activities. Asahi Metal Indus., 480 U.S. at 116; Burger
King, 471 U.S. at 477-78. The defendant bears the burden of
presenting "a compelling case that the presence of some other
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considerations would render jurisdiction unreasonable."
Burger King, 471 U.S. at 477.
In deciding whether the exercise of jurisdiction is
reasonable, courts consider factors such as the burden on the
defendant in litigating in the forum state, the forum state's
interest in adjudicating the dispute, the plaintiff's interest in
obtaining convenient and effective relief, the interstate judicial
system's interest in obtaining the most efficient resolution of
controversies, and the shared interest of the several states in
furthering fundamental substantive social policies. Burger
King, 471 U.S. at 477; World-Wide Volkswagen, 444 US. at
292. The unique burdens placed upon a foreign defendant
who must defend itself in a foreign legal system should have
significant weight in assessing the reasonableness of stretching
personal jurisdiction over national borders. Asahi Metal
Indus., 480 U.S. at 114.
The record indicates that Canadian General is not unduly
unfamiliar with the American legal system. In addition,
because the legal system is generally uniform throughout the
United States, Canadian General's litigation throughout the
United States supports the reasonableness of retaining
jurisdiction in Minnesota.
Because Domtar is a Canadian corporation, the present
case is not one in which the State of Minnesota's interest
derives from the desire to provide a forum for its resident
plaintiff. Nevertheless, this case is unlike the typical case
involving two non-residents because the alleged environmental
contamination occurred in Minnesota. Minnesota's interests in
conserving natural resources, decreasing environmental
pollution and protecting the environment are “unquestionably
* * * state interests of great magnitude." Can Manufacturers
Inst., Inc. v. State, 289 N.W.2d 416, 420 (Minn. 1979); see
also Minnesota Environmental Rights Act, Minn. Stat. §
116B.01 (1994) (proclaiming "it is in the public interest to * *
* protect air, water, land and other natural resources located
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within the state from pollution, impairment, or destruction.").
Because efforts to clean up contaminated sites are expensive,
the state has a further interest in making sure the costs are
paid by those responsible for the contamination.
Canadian General is one of three alleged primary liability
insurers for the Domtar tar “manufacturing site. Without
Canadian General's presence in the present litigation, either
Domtar or other insurers will be required to seek contribution
from Canadian General in Canada, resulting in piecemeal and
fragmented litigation. Moreover, the evidence of
contamination, the effectiveness of remediation efforts and the
expert witnesses, many of whom will presumably be from the
MPCA, are all located in Minnesota. Thus, efficient resolution
of this case favors retaining jurisdiction in Minnesota.
Considering the relevant factors, we conclude that
Canadian General has failed to rebut the presumption of
reasonableness, and we hold that subjecting Canadian General
to specific personal jurisdiction in Minnesota comports with
traditional notions of fair play and substantial justice.
Affirmed.
JJ. Coyne, Gardebring and Stringer took no part in the
consideration or decision of this case.
STATE OF MINNESOTA
IN COURT OF APPEALS
CX-93-2449
Ramsey County Schumacher, Judge
District Court File #C0918218 Dissenting, Lansing, Judge
Domtar, Inc., Douglas L. Skor
Kathleen Erickson DiGiorno
Respondent, Briggs and Morgan
2200 First National Bank Bldg.
v. St. Paul, MN 55101
Paul Anton Zevnik
John Osborne
Zevnik, Horton, Guibord
& McGovern
1133 Connecticut Avenue NE.
Washington, D.C. 20036
Niagara Fire insurance Co.,
et al.,
Defendants,
Canadian General Insurance Larry A. Hanson
Co., Leonard W. Glewwe
Appellant Moore, Costello & Hart
1400 Norwest Center
55 East Fifth Street
St. Paul, MN 55101
Filed: June 21, 1994
Office of Appellate Courts
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SYLLABUS
A Minnesota court can exercise personal jurisdiction over
a Canadian insurer in a declaratory judgment action brought in
Minnesota by its insured, a Canadian corporation, when the
insured has been sued in Minnesota for property damage in
Minnesota alleged to have been caused by the insured’s
manufacturing operation in Minnesota.
Affirmed.
Considered and decided by Schumacher, Presiding Judge,
Lansing Judge, and Randall, Judge.
OPINION
SCHUMACHER, Judge
Canadian General insurance Company appeals from the
district court's denial of Canadian General's motion to dismiss
for lack of personal jurisdiction. We affirm.
FACTS
Respondent Domtar, Inc. is a Canadian corporation with
its principal place of business in Montreal, Quebec. Canadian
General is also a Canadian corporation; its principal offices are
in Scarborough, Ontario.
in 1924, Dominion Tar & Chemical Company Ltd., a
predecessor to Domtar, opened and began operating a tar
plant in Duluth, Minnesota. The pliant was in operation from
1924 until 1948, when it was shut down permanently. Domtar
sold the property on which the plant was located in 1955.
The Domtar plant was located in an industrial area on the
north bank of the St. Louis River in West Duluth,
approximately four river miles from Lake Superior. The plant
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was on a peninsula, with the Stryker Embayment to the west.
Pollutants have been found in the river. The Peninsula, an
adjoining boat slip and the Stryker Embayment are part of a
230-acre superfund site that was placed on Environmental
Protection Agency's national priorities list in 1983 and on the
Minnesota Pollution Control Agency's (PCA) permanent list of
priorities in 1984.
On March 26, 1991, the PCA issued a request for
response action to, among others, Domtar. The request for
response action identified Domtar as a potentially responsible
party and requested that Domtar conduct investigations and
submit reports to the PCA.
Domtar tendered the PCA's claim to its insurers, who
refused the tender. Domtar commenced a declaratory
judgment action in Ramsey County, Minnesota against its
insurers, asserting the insurers were obligated to investigate
the PCA's claims, and to defend and indemnify Domtar in the
PCA proceedings. Canadian General moved to dismiss,
asserting that the Minnesota court lacked personal jurisdiction
over Canadian General.
Canadian General is not licensed to do business in
Minnesota and has never sold insurance in its own name in this
state.’ Canadian General maintains no offices outside of
Canada and is not licensed to do business in any state of the
United States. In addition, Canadian General rarely insures
U.S. operations and charges a higher premium for coverage of
U.S. sales than Canadian sales.
According to Domtar, Canadian General issued primary
liability insurance to Domtar from 1956 through 1965. The
' Canadian General has, however, conducted business in Minnesota
through another insurer. See County of Hennepin vy. Ada-Bec Sys. , 394
N.W. 2d 611 (Minn. App. 1986)., pet. for rev. denied (Minn. Dec. 17,
1986).
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only Canadian General policy found so far covered Domtar
between January 1, 1960 and January 1, 1963, and was a
renewal of a previous policy. The property damage
endorsement to the 1960-63 policy provided that Canadian
General would
PAY on behalf of the Insured all sums which the
insured shall become obligated to pay * * * for
damages because of damage to or destruction of
property caused by accident occurring within the
Policy Period and while this Endorsement is in force.
At the time the policy was issued, the customary practice was
to issue policies for three-year terms. Although Canadian
General did not retain the underwriting file from 1960, it
surmised that the file should have contained information on
Domtar’s operations, including estimated sales broken down
by various types of operations, prior claims history and
inspection reports of Domtar’s main operations and main
locations.
When Canadian General moved for dismissal, the district
court ordered further discovery on the jurisdiction issue.
Following discovery, the district court determined that it could
exercise personal jurisdiction over Canadian General.
Canadian General appeals.
ISSUE
Did the district court err in concluding it could exercise
personal jurisdiction over the Canadian insurer of a Canadian
corporation for property damage in Minnesota which occurred
during the policy period and was allegedly caused by the
insured's activities in Minnesota?
ANALYSIS
Standard of Review
An order denying a motion to dismiss for lack of personal
jurisdiction is appealable as a matter of right. Stanek v. A.P.L.,
Inc., 474 N.W.2d 829, 831 (Minn. App. 1991), at On
denied (Minn. Oct. 31, 1991), and cert. denied, __
(1992). Whether personal jurisdiction exists diag a
question of law that this court reviews de novo on appeal. Id.
at 832.
1. The Long Arm Statutes
Whether personal jurisdiction over a nonresident exists
depends on two criteria: (1) whether the requirements of
Minn. Stat. § 543.19 (1992), the long arm statute, have been
satisfied; and (2) whether there are sufficient “minimum
contacts” to satisfy constitutional due process requirements.
Stanek, 474 N.W.2d at 832 . Whether the requirements of the
long arm statute have been met presents a question of state
law; whether there are sufficient minimum contacts to satisfy
due process is a question of federal law. Id.
The legislature intended the long arm statute to have the
maximum extraterritorial effect allowed under the United
States Constitution. Valspar Corp. v. Lukken Color Corp.,
495 N.W.2d 408, 410 (Minn. 1992). Because the legislature
intends the long arm statute to be coextensive with the limits
of due process, the only issue presented in this appeal is
whether the exercise of personal jurisdiction over Domtar is
consistent with the requirements of the federal Constitution.
Id. at 411. Any doubt regarding the sufficiency of contacts to
allow the exercise of personal jurisdiction should be resolved
in favor of jurisdiction. Id, at 412.
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2. Due Process
LAE LDE EAU: aN i a , 2 VV Oh ‘A Sit
Reevaluation, 58 Notre Dame L. Rev. 635 n.1 (1983). Under
International Shoe, a nonresident defendant may be subject to
the personal jurisdiction of a state's courts if the defendant has
sufficient minimum contacts with the foreign state so that the
exercise of jurisdiction over the nonresident does not offend
"traditional notions of fair play and substantial justice.”
International Shoe, 326 U.S. at 316, 66 S. Ct. at 158 (quoting
Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343
(1940)); see also Rush v. Savchuk, 444 U.S. 320, 100 S. Ct.
571 (1980); World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 100 S. Ct. 559 (1980); Kulko v. Superior Court,
436 U.S. 84, 98 S. Ct. 1690 (1978); Shaffer v. Heitner, 433
U.S. 186, 97 S. Ct. 2569 (1977). In making this
determination, the focus is on “the relationship among the
defendant, the forum, and the litigation." Shaffer, 433 U.S. at
204.
The decision in International Shoe recognized that
modern travel and communication technologies have greatly
reduced the burden on a defendant imposed by litigating
outside of its home state. McGee v. International Life Ins.,
355 U.S. 220, 222-23, 78 S. Ct. 199, 201 (1957). With
respect to insurance, the Court weighs heavily the
consequences of the insurer's contractual obligations in the
state where the insurer's obligations are to be carried out.
inia, 339
U.S. 643, 648, 70 S. Ct. 927, 930 (1950).
Personal jurisdiction over a foreign corporation is
consistent with due process requirements when the
corporation has "purposefully avail[ed] itself of the privilege
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of conducting activities within the forum State, thus invoking
the benefits and protections of its laws." Hanson v. Denckla,
357 U.S. 235, 253, 78 S. Ct. 1228, 1240 (1958) (citing
International Shoe, 326 U.S. at 319, 66 S. Ct. at 154). Ifa
corporation has purposefully availed itself of the benefits and
protections of the forum. state's laws, the corporation has
"clear notice that it is subject to suit" in the forum state.
World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567.
It can then protect itself from the burden of litigation by
procuring insurance. Id.
The purposeful availment must consist of actions taken by
the defendant that "create a ‘substantial connection’ with the
forum State." Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475, 105 S. Ct. 2174, 2184 (1985) (quoting McGee, 355
U.S. at 223, 78 S. Ct. at 201). A customer's unilateral act of
bringing the corporation's product into the forum state is
insufficient to create personal jurisdiction. World-Wide
Volkswagen, 444 U.S. at 295-96, 100 S. Ct. at 566.
Courts must exercise greater caution in exercising
personal jurisdiction across international boundaries than
across interstate boundaries. Asahi Metal Indus. v. Superior
Court, Solano County, 480 U.S. 102, 114, 107 S. Ct. 1026,
1033 (1987). When a court exercises personal jurisdiction
across state lines, two interests are implicated: the right of the
defendant not to be burdened by unfair litigation in a distant
forum and the proper role of one state's courts in a federal
system. World-Wide Volkswagen, 444 U.S. at 291-92, 100 S.
Ct. at 564. When national borders are crossed, a court must
give “significant weight" to the “unique burdens" of a
defendant that is forced to defend itself in a foreign legal
system. Asahi, 480 U.S. at 114, 107 S. Ct. at 1033. In
addition, a state’s exercise of personal jurisdiction in the
international level may involve considerations of the United
States, foreign relations policies. Id. at 115, 107 S. Ct. at
1034. Canadian General has not indicated any unique burdens
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imposed on it by having to enter a foreign legal system, nor
has Canadian General shown any potential foreign policy
concerns that might be affected by Minnesota's exercise of
personal jurisdiction.’
In this case, Domtar was doing business in Minnesota. It
obtained insurance to cover its potential liability created by its
Minnesota operations, as the Court recognized corporations
could do in World-Wide Volkswagen, 444 U.S. at 297, 100 S.
Ct. at 567. Canadian General issued an insurance policy that
afforded Domtar protection against liability for property
damage caused by Domtar's operations, including its
Minnesota operations. Canadian General's underwriting
process should have alerted Canadian General to the
possibility that its insured could be sued in a state where the
insured had operated a manufacturing facility for 30 years.
In this case, Domtar had ceased operation in Minnesota at
least two years before the first Canadian General policy was
issued. Nevertheless, the possibility that a manufacturer could
be liable for groundwater contamination and responsible for
cleaning up the pollution has been recognized in Minnesota
since the late 1800's. Minnesota Mining & Mfg. v. Travelers
Indemn. Co., 457 N.W.2d 175, 183 (Minn. 1990). Domtar
had operated in Minnesota for over 30 years. It obtained
insurance to cover its potential liability created by its
Minnesota operations, as the court recognized corporations
? Clearly, both Canada and the United States have an interest in
assuring the clean-up of pollution that could affect both countries. The
Domtar site is on: a river four miles from Lake Superior, the largest lake
in North America, a lake on which the states of Minnesota, Wisconsin
and Michigan, and the providence of Ontario, border. The broad issuc
Domtar’s declaratory judgement action raises is how the clean-up is to be
financed. Canadian General has not shown that the present declaratory
judgment action contravenes a clearly established policy of the Canadian
government fixing responsibility for payment of clean-up costs.
B-8
could do in World-Wide Volkswagen, 444 U.S. at 297, 100 S.
Ct. at 567. According to one of Canadian General's officers,
the underwriter file should have contained information on
Domtar’s operations and locations. Thus, Canadian General
should have been aware that it was insuring Domtar for
potential liability for groundwater contamination in Minnesota
at the time it entered into the insurance policies. See
Minnesota Mining & Mfg., 457 N.W.2d at 183 (at time
entered into insurance policies, parties aware of potential
liability for groundwater contamination).
Moreover, the property damage has been ongoing.
Damage to property occurring during Canadian General's
policy period would trigger the Canadian General coverage.
Industrial Steel Container Co. v. Fireman's Fund Ins. Co., 399
N.W.2d 156, 159 (Minn. App. 1987), pet. for rev. denied
(Minn. Mar. 18, 1987).
Canadian General should have expected coverage
disputes to be resolved in the same forum as the underlying
action. A claim has been brought against Domtar alleging
Domtar's operations in Minnesota have caused property
damage in Minnesota. Responding to Domtar's declaratory
judgment action in Minnesota is a responsibility that attends
issuance of the policy. See
Cannelton Indus., 823 F. Supp. 498, 502-03 (W.D. Mich.
1993). This case does not involve a unilateral act by Domtar
in bringing Canadian General's product into Minnesota;
Canadian General and Domtar entered into a contract of
insurance for Domtar’s liability. The present case is an action
on that contract brought in the place of performance.
The declaratory judgment action brought by Domtar
against Canadian General arises out of the issuance of an
insurance policy, as well as the administrative proceedings that
have been commenced against Canadian General's insured in
Minnesota. This provides a sufficient basis for exercising
personal jurisdiction over Canadian General. See AIU Ins.
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Co. v, Superior Court, 222 Cal. Rptr. 880 (Cal. App. 1986),
pet. for rev. denied (Cal. May 21, 1986), cert, denied, 479
U.S. 821 -(1986). In AIU, a Bermuda-based insurance
company was sued in California by Shell Oil Company. The
states of California and Colorado, the United States
Environmental Protection Agency-arid the United States Army
had sued Shell Oil Company for damages and cleanup costs
associated with the Rocky Mountain Arsenal in Colorado and
a toxic waste site near Fullerton, California. AIU, 222 Cal.
Rptr. at 881. The court held that the cause of action against
the insurer arose out of the insurer's forum-related activity of
insuring Shell's assets and activities in Callifornia. Id. at 885.
In the present case, as in ATU, the cause of action against
Canadian General arises out of Canadian General's insuring of
Domtar’s assets and activities in Minnesota. We hold that this
is sufficient to allow a Minnesota court to exercise personal
jurisdiction over Canadian General. See AIU, 222 Cal. Rptr.
at 886.
Domtar argues that Canadian General agreed to be
subject to suit anywhere in the United States and Canada
because the Canadian General policy defined the coverage
territory as the United States and Canada. Domtar urges this
court to apply what has come to be known as the territory-of-
coverage rule, under which any forum within the geographic
territory covered by an insurance policy can exercise
ape over the insurer. —~ William C. HoGiaen,
Tomeenhabcaeaneaioe 26 Tort & Ins. L. J. 703 (1991).
In this case, there is no need to resort to the territory-of-
coverage rule. Although Canadian General issued a policy
covering Domtar’s liability in the United States and Canada,
what is significant is that Canadian General should have been
aware of Domtar's previous contacts with Minnesota and
agreed to insure Domtar for its potential liability. This is not a
case in which Domtar’s products have gone from Minnesota to
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another state and caused injury or property damage there. The
insured's operations in Minnesota have caused damage in
Minnesota. This is not the “fortuitous presence" of a
Canadian General insured; Domtar's factory was in Minnesota
for 30 years. Cf
Protection & indem. Ass'n, 687 F. Supp. 695 (D. Me. 1988).
Canadian General agreed to insure Domtar for liability
arising out of its operations, including its operations in
Minnesota. Canadian General's conduct and connection with
Minnesota are such that it should reasonably anticipate being
haled into court here. World-Wide Volkswagen, 444 U.S. at
297, 100 S. Ct. at 567.
DECISION
Canadian General is subject to the jurisdiction of the
Minnesota courts in this declaratory judgment action.
Affirmed.
s/s
ROBERT H. SCHUMACHER
6/15/94
LANSING, Judge (dissenting).
I respectfully dissent. The evidence is undisputed that
two years before Canadian General first decided to insure
Domtar, a Canadian company, Domtar had sold its Minnesota
plant and no longer conducted operations in Minnesota.
Because Canadian General directed no contacts toward
Minnesota, the exercise of jurisdiction violates longstanding
jurisdictional principles and disregards the enhanced
jurisdictional burden that applies when the defendant is a
foreign national.
The United States Supreme Court distinguishes between
general and specific jurisdiction. General jurisdiction is
measured by the existence or extent of “continuous and
systematic" contacts with the forum state. Helicopteros
Nacionales y. Hall, 466 U.S. 408 416, 104 S. Ct. 1868, 1872
(1984); see also Valspar Corp. v. Lukken Color Corp., 495
N.W.2d 408, 411 (Minn. 1992) (general jurisdiction exists
when "a defendant conducts so much business within a state
that it becomes subject to the jurisdiction of that state's courts
for any purpose"). Specific jurisdiction may be based on only
a few contacts with the forum state, but the case must arise
out of or relate to one of those specific contacts.
Helicopteros, 466 U.S. at 416, 104 S. Ct. at 1872; Valspar,
495 N.W.2d at 411.
As the majority implicitly recognizes, general jurisdiction
is not available over Canadian General. Although Canadian
General had some contacts with Minnesota in the 1970s and
1980s, when it provided bonds to another Canadian company
for a Minnesota medical center, these contacts are not the type
of "continuous and systematic" contacts that would support an
exercise of jurisdiction. See Helicopteros, 466 U.S. at 416,
see also Valspar, 495 N.W.2d at 411.
Neither is specific jurisdiction available. This is a
declaratory judgment action brought by Domtar against
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0 per ROMS
Canadian General in Minnesota. Domtar has not provided any
concrete evidence of Canadian General directing contacts
toward Minnesota by insuring Domtar. See Hardrives, Inc. v.
City of LaCrosse, 307 Minn. 290, 293, 240 N.W.2d 814, 816
(1976) (when a defendant challenges jurisdiction, the plaintiff
has the burden of proving a prima facie case supporting
jurisdiction). Although a defendant need not be present within
a state to be subject to jurisdiction, the defendant must have
“purposely directed" efforts toward residents of the forum
state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476,
105 S. Ct. 2174, 2184 (1985).
According to the parties, Domtar’s Duluth plant was sold
in 1955. Domtar alleges in its complaint that Canadian
General first insured it in October 1956. The evidence varies
slightly from the allegation and shows that Canadian General
likely first insured Domtar in 1957. Domtar submitted
evidence demonstrating that its contacts with the Duluth site
extended to April 1956. Whichever evidence is accurate, there
is mo evidence that Domtar had any connection with
Minnesota at the time Canadian General first insured it.
Canadian General submits evidence stating that it never
insured Domtar's Minnesota operations and this evidence is
consistent with the information Domtar provides. Although
Canadian General may have considered Domtar’'s past
presence in Minnesota when deciding whether to insure
Domtar, no underwriting records exist to show that such
consideration took place. Even if these records did exist,
however, it is unlikely that Canadian General would have
foreseen that it would be haled into a Minnesota court based
on its act in insuring a Canadian company, which at the time
the insurance policy was first issued, did not own property in
Minnesota or have any contacts with Minnesota. Cf McGee
v. International Life Ins., 355 U.S. 220, 223, 78 S. Ct. 199,
201 (1957) (finding jurisdiction over insurance company when
contract was delivered in forum state, premiums were mailed
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from forum state, and insured was a resident of forum state at
time of death).
Domtar, in this action, is seeking coverage from sixteen
insurers. Although pragmatic considerations favor allowing
Domtar to resolve all coverage questions in one action, these
pragmatic concerns cannot override longstanding jurisdictional
principles, particularly when the principles are applied to a
foreign national. See Asahi Metal Indus. v. Superior Court of
Cal., 480 U.S. 102, 115, 107 S. Ct. 1026, 1034 (1987) (courts
must exercise great care and reserve when extending notions
of personal jurisdiction into the international field). Canadian
General has not purposefully availed itself of the "privilege of
conducting activities within the forum state, thus invoking the
benefits and protection of its law. See Hanson v. Denckla,
357 U.S. 235, 253, 78 S. Ct. 1228, 1240 (1958).
Minnesota has a strong interest in holding parties
responsible for environmental harm. But Minnesota clearly
has jurisdiction over Domtar, the party that is liable for
response costs. Domtar's suit against Canadian General is
basically for indemnification, and although Minnesota has an
interest in Canadian General's indemnification of Domtar, this
interest cannot create jurisdiction. See Asahi, 480 U.S. at
114-15, 107 S. Ct. at 1033 (recognizing that California had
only minimal interests in an indemnification suit between two
foreign nationals). Domtar is free to proceed against Canadian
General in Canadian courts.
A defendant must have minimum contacts with the forum
state "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, 66
S. Ct. 154, 158 (1945). Canadian General's contacts with
B-14
Minnesota are insufficient to establish either general or specific
jurisdiction, and I would reverse.
s/s
Harriet Lansing
June 15, 1994
FILED
NOV 17 1993
J.E. GOCKOWSKI
COURT ADMINISTRATOR
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT
File No. CO-91-8218
Domtar, Inc.,
Plaintiff,
ORDER
VS.
Niagra Fire Insurance Co.,
Continental Insurance Company,
Allstate Insurance Company of
Canada, American Home Assurance
Company, Canadian General Insurance
Company, Chubb Insurance Company of
Canada, Columbia Casualty Company,
Federal Insurance Company, Gerling
Global Reinsurance Corporation,
Halifax Insurance Company, INA
Insurance Company of Canada, New
Hampshire Insurance Company,
Scottish & York Insurance Company,
Zurich Insurance Company, World
Auxiliary Insurance Corporation
Limited, and Certain Underwriters
at Lloyd's of London,
Defendants.
C-1
The above-entitled matter came on before the undersigned
on November 4, 1993 in connection with the Canadian
General Insurance Company's motion to dismiss under Rule
12.02(b}. Larry Hanson appeared on behalf of Canadian
General Insurance Company. Douglas Skor appeared on
behalf of Domtar.
Based upon all the arguments of counsel, the files and
proceedings herein,
IT IS HEREBY ORDERED,
1. That Canadian General's motion to dismiss for lack of
personal jurisdiction is denied in all respects.
2. The following memorandum is hereby incorporated
herein.
Dated:__November 16, 1993. BY THE COURT
oe os:
JOHN S. CONNOLLY
Judge of District Court
MEMORANDUM
FACTS
Domtar is a Canadian Corporation that operated in
Minnesota, from 1924-1955. From 1924-1948, Domtar
operated a tar plant in West Duluth. Domtar closed the tar
plant in 1948, but did not sell the plant until 1955.
Defendant Canadian General issued liability insurance
policies to Dominion Tar and Chemical (Domtar) from 1956-
1965. The policy expressly insured risks in Canada and the
United States. Although only one policy was found from the
period 1960-1962, circumstantial evidence indicates Domtar
was insured from 1956-1965 by Canadian General.
ISSUE
Does an insurance policy clause providing indemnity for
torts committed in Canada and the United States provide
sufficient contacts with Minnesota such that an insurer could
reasonably expect to be hailed into Minnesota courts.
Lad.) 00 determine jurlediotion, 0 court saat Consider f
the burden on the defendant, the interest of the forum
State, and the plaintiff's interest in obtaining relief. . .
the interstate judicial systems interest in obtaining the
most efficient resolution of controversies; and the
shared interest of the several States in furthering
fundamental substantive social policies.
Id. at 113. Utilizing this test in the case at hand, the defendant
insurance company’s main office is in Toronto Ontario
Canada, a province that adjoins Minnesota to Canada,
therefore, the burden on the defendant is slight. In addition, it
appears at this time the vast majority of witnesses on this
subject will be from Minnesota.
Looking at the second test, the interests of the forum
state, the interest of Minnesota is far greater than any state or
province covered in Canadian General's policy. If there was
pollution, it happened in Minnesota and the victims of said
pollution were the residents of Minnesota.
With regard to the third part of the test, the plaintiff has
an interest in having this matter decided expeditiously. This
case has been in this court for two years and is not scheduled
C-3
for trial in November 1994. If it is moved to Canada it is
unlikely it will be tried by the November date.
In the Asahi case, Justice O'Connor stated,
often the interests of the plaintiff and the forum in the
burdens placed on the alien defendant. In the present
case, however, the interest of the plaintiff and the
forum in California's assertion of jurisdiction over
Asahi are slight. All that remains is a claim for
indemnification answered by Cheng Shin, a
Taiwanese corporation, against Asahi. The
transaction on which the indemnification claim is
based took place in Taiwan; Asahi's components
were shipped from Japan to Taiwan. Cheng Shin has
not demonstrated that it is more convenient for it to
litigate its indemnification claim against Asahi in
California rather than in Taiwan or Japan.
Because the plaintiff is not a California resident,
California's legitimate interests in the dispute have
considerably diminished. The Supreme Court of
California argued that the State had an interest in
“protecting its consumers by ensuring that foreign
manufacturers comply with the state's safety
standards." 39 Cal.3d, at 49, 702 P.2d, at 550. The
State Supreme Court's definition of California's
interest, however, was overly broad. The dispute
between Cheng Shin and Asahi is primarily about
indemnification rather than safety standards.
Moreover, it is not at all clear at this point that
California law should govern the question whether a
Japanese corporation should indemnify a Taiwanese
corporation on the basis of a sale made in Taiwan and
a shipment of goods from Japan to Taiwan.
C-4
Id. at 114-15.
Here we have an entirely different situation. Although
Domtar is also a foreign corporation, if Domtar committed any
acts of pollution, it occurred in Minnesota while it was doing
business in Minnesota. In the Asahi case, all that was left of
the law suit was an indemnification claim that was based on
what took place in Taiwan, some 5000 miles away from where
Asahi's components were shipped. In this case, the pollution
takes place in Minnesota. Defendant Canadian General
accepted insurance premiums and in consideration insured
Domtar against losses sustained by Domtar in any province of
Canada or any state of the United States, including Minnesota.
The fourth test is weighing the interstate judicial system's
interest in obtaining the most efficient resolution of the
controversy and the shared interest of the several states in
furthering fundamental substantive social policies. Minnesota
is the proper jurisdiction to decide this case because
Minnesota is in a much better position to make a
determination of whether Domtar polluted its land and water
and if so, Domtar’s indemnity carriers obligation with regard
to the same.
PURPOSEFUL AVAILMENT
For this court to have jurisdiction over Canadian General
under the doctrine of purposeful availment, it would mean the
defendant must have objective grounds for an expectation that
the defendant might be sued in the foreign state. This is not,
however, simply a question of the defendant being able to
foresee a law suit here. The Supreme Court stated in World-
Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 297
(1980), the foreseeability of litigation "is not wholly irrelevant,
but the foreseeability that is critical to due process analysis . . .
is that the defendant's contact and connection with the forum
C-5
ee
state are such that he should reasonably anticipate being hailed
into court there." Canadian General must have reasonably
anticipated being hailed into the State of Minnesota where the
alleged pollution took place.
Jurisdiction is proper where the contacts proximately
result by the action by the defendant himself. Asahi at 112.
The substantial connection “between the defendant and the
forum state necessary for a finding of minimum contacts must
come about by an action of the defendant purposely directed
towards the forum state. Burger King v. Rudzewicz, 471 U.S.
462, 476 (1984); Keeton v. Hustler Magazine, Inc., 465 U.S.
770, 774 (1984). Here defendant Canadian General purposely
directed actions towards the forum State of Minnesota by
issuing an indemnity policy covering claims against Domtar in
any state of the United States, including Minnesota.
The Minnesota Court of Appeals discussed Asahi in
Stanek v. A.P.L, Inc., 474 N.W.2d 829, 859 (Minn. Ct. App.
1991). The Court held Minnesota had jurisdiction over a case
filed against a foreign asbestos mining corporation by workers
injured by exposure to asbestos. Jurisdiction was proper
because the foreign asbestos mining corporation has sufficient
Minnesota contacts with Minnesota. In Stanek, Judge Parker
stated,
We are confronted with the cases of Minnesota
workers who allege they have been afflicted with
terrible diseases as a result of exposure to asbestos.
Minnesota has a strong interest in providing a forum
for their cases. Indeed, it is inscribed in our
constitution: Every person is entitled to a certain
remedy in the laws for all injuries or wrongs which he
may receive to his person, property or character, and
to obtain justice freely and without purchase,
completely and without denial, promptly and without
delay, comformable to the laws.
C-6
Id. at 835. This case is similar to the Stanek case. The MPCA
alleges that Domtar polluted the soil and possibly the waters
of Minnesota.
Canadian General is not inconvenienced to by having to
resolve the case in Minnesota. Minnesota is a state that
borders the province of Canadian General's principle place of
business. This is not a situation where one party is located
5000 miles from the other, giving Minnesota a distant interest
in providing a forum for the action. In Payne v. Mutual Fire
and Auto. Ins. Co., 381 N.W.2d 523 (Minn. Ct. App. 1986),
the Court of Appeals held that in Iowa automobile insurer that
insured an Iowa resident, under a restricted coverage of a 75
mile radius from the insured's place of business in Laurens,
Iowa. The Minnesota Court of Appeals held that Minnesota
had jurisdiction even though the accident was near the Twin
Cities, more than 75 miles form Laurens, Iowa, but less than
75 miles from the Minnesota border.
In differentiating World-Wide Volkswagen, Judge
Forsberg stated,
Unlike the dealer and distributor in World-Wide
Volkswagen, whose contact with Oklahoma arose
through the fortuitous travels of their customer,
Mutual Fire purposefully insured whatever travels
Reed might undertake in one area of Minnesota
through territorial limitation extending into this state.
Thus we need not decide whether the act of insuring
the traveling tortfeasor is sufficient contact to afford
personal jurisdiction. Since Mutual Fire's policy
included a territorial limitation excluding all foreign
jurisdictions except Minnesota, it need not be
vulnerable to suit in all fifty states in order to be
subject to the jurisdiction of Minnesota courts.
C-7
Id. at 525. In this case, Canadian General's contact with
Minnesota is much more specific. Rather than having a
territorial limitation to certain parts of Minnesota, Canadian
General indemnifies any occurrence in any province of Canada
or any state of the United States, including Minnesota.
THE TERRITORY-OF-COVERAGE RULE
In an article entitled, "Personal Jurisdiction Over Alien
Insurance Companies: The Territory-of-Coverage Rule, 26
Tort & Ins. L.J. 3 (1991), William C. Hoffman concludes that
numerous courts exercise jurisdiction over alien insurance
carriers on a basis that appears to require less contact than the
Constitution generally requires. In Travelers Health Assoc. v.
Virginia, the United States Supreme Court departed from
prior law and upheld the exercise of jurisdiction over a foreign
insurer. The court held that the Virginia law conferring
jurisdiction over the defendant did not offend due process.
339 U.S. 643 (1950). "[W)here business activities reach out
beyond one state and create continuing relationships and
obligations with citizens of another state," the necessary
contacts exist. Id. at 649. The Court reasoned that to deny
jurisdiction would unjustly compel the insureds to “seek
redress only in some distant state where the insurer is
incorporated." 339 U.S. at 649.
In describing the territory of coverage rule, Hoffman
stated, "the majority of U.S. courts that have addressed the
issue to date holds that the inclusion of the forum state in the
territory of coverage of an insurance policy may support
jurisdiction over an insurer." Hoffman, supra, at 709.
Hoffman concluded,
insurers who designate "U.S.A." in a territory-of-
coverage clause thereby may establish "minimum
contacts” with that territory. Now the issues is
C-8
whether this rule may be applied consistently with the
Constitution in the international field against an alien
insurer who has no other contact with the forum
state. It seems that an alien insurer providing
coverage for a risk "in the U.S.A." is not unfairly
subjected to the jurisdiction of the courts of a state
where that risk was realized.
Id. at 719.
In a close case, doubts should be resolved in favor of
retention of jurisdiction. Valspar Corp. v. Lukken Color
Corp., 495 N.W.2d 408, 411-12 (1992).
CONCLUSION
Canadian General created the relationship with the
Minnesota by contracting to insure plaintiff against liabilities in
Minnesota. This act gives Minnesota courts personal
jurisdiction in a lawsuit arising out of or relating to Canadian
General's forum contacts. See Valspar at 411; "Specific and
General Jurisdiction-The Reshuffling of Minimum Contacts
Analysis," 59 Tulane L. Rev. 832, 833 (1985).
JSC
C-9
STATE OF MINNESOTA
IN SUPREME COURT
CX-93-2449
Domtar, Inc., OFFICE OF
APPELLATE COURTS
Respondent,
JUL 25 1995
vs. FILED
Niagara Fire Insurance Co., et al.,
Defendants,
and
Canadian General Insurance Co., petitioner,
Appellant.
ORDER
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED that Canadian General
Insurance Company's petition for rehearing, be, and the same
is, denied.
Dated: July 25, 1995
BY THE COURT:
s/s A.M. Keith
Chief Justice
Coyne, Gardebring, and Stringer, JJ. took no part or
consideration in the decision of this case.
D-i
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.