Document yzjgQxJmbwL0gnJGEK0xqmbr

FILE NAME Cape Asbestos CAPE DATE 1980 Apr 7 DOC CAPE140 DOCUMENT DESCRIPTION Court Order rejecting NAAC Motion to Dismiss Legal - Tibbs Case Exhibit 38 ELECTRONICAL Y ELECTRONICALY ELCTRONIAY STATE OF SOUTH CAROLINA COUNTY OF BARNWELL IN RE > ) IN THE COURT OF COMMON PLEAS ) . FILED ASBESTOSIS CASES ) Case No. 06-105 ) - ORDER 2023 This matter is before the Court on the defendant North Oct 18 American Asbestos Corporation's Motion to Dismiss for lack of in personam jurisdiction In support of this Motion North 12:13 . American Asbestos filed Affidavits of Mr. C. G. Morgan President PM - of North American Asbestos and Gabriel Ferrucci Vice President . RICHLAND of Raybestos Inc. a defendant In these Affidavits it appears that North American Asbestos did make sales to Raybestos- - Manhattan f.o.b. Philadelphia and that these products were then COM ON shipped to South Carolina the total amount of that invoice being 6,516.85 In opposition to this Motion plaintiffs filed Affidavit of plaintiffs counsel which incorporated references to various PLEAS discovery documents on file in Federal Court and in State Court - # defendants including Answers to Interrogatories by numerous of the R.A.P. R.A.P. It appears that North American Asbestos Corporation was the sole R.A.P. supplier of raw asbestos fiber of a type called Amosite in this 203CP41759 country It further appears that Amosite was used by numerous of the defendants as a constituent of their thermal insulation products which plaintiffs contend they were exposed to In particular plaintiffs pointto the depositions of numerous asbestos diseased plaintiffs in which exposure to the product Unibestos manufactured by Pittsburgh Corning and previously by Unarco occurred in the State of South Carolina North American Asbestos does not contest the fact that the product Unibestos and other products containing Amosite were used by various of the plaintiffs in these cases Accordingly I find that a substantial amount of Amosite ELECTRONICAL Y ELECTRONICAL Y asbestos was shipped into this State and used by numerous of the ELCTRONIAY plaintiffs inthese actions North American Asbestos also contends however that their last direct sale to South Carolina occurred in 1971 and that there is no proof that they were doing business in the State of South Carolina at the time these lawsuits FILED were instituted They further contend that whatever sales occurred - 2023 in South Carolina occurred fortuitously or through intermediary had Oct parties whose sales North American Asbestos no control over 18 The South Carolina Long Statute S. C. Code Ann Section 36-2-803 specifically permits the exercise of personal jurisdiction_ 12:13 a arises PM over foreign corporation when the cause of action from - that corporation's RICHLAND 1 Transacting any business in this State 2 Commission of a tortious act in whole or in part in - this State COM ON 3 Production manufacture reasonable expectation that those or distribution goods are to be of goods with used or consumed PLEAS in this State and are so used and consumed ---~ In construing this Statute our Supreme Court has held that - the Long Statute permits extension of jurisdiction to the outer limits allowed by the due process clause Triplett v R. M. Wade Co. 261 S.C. 419 200 S.E.2d 675 1973 203CP41759 The clear trend in assessing constitutional arguments such as is posed by North American Asbestos in this case with respect to fortuitous introduction into the stream of commerce is to find that jurisdiction is valid if the foreign party had reason to know or expect that its product would be brought into the state where the injury occurred Eyerly Aircraft Co. V. Killian 414 F.2d 591 596 5th Cir 1969 Thus Courts have held that where a defendant corporation voluntarily chooses to sell its product nationally in a way and manner in which it will be resold from dealer to dealer it cannot either reasonably claim that it is surprised at being held ELECTRONICAL Y ELECTRONICAL Y to answer in a foreign state for damagetso product causes in ELCTRONIAY that state See Keckler v Brookwood Country Club 248 F. Supp 645 N.D. Ill 1965 and Connelly v Uniroyal Inc. " N.E.2d Ill 1979 Accordingly I find that a conscious pattern of product FILED - distribution nationally which results in the product being incorporated in another product which was used in this state such as occurred 2023 here is a sufficient constitutional basis upon which to attach Oct in personam jurisdiction 18 With respect to North American Asbestos f.o.b. argument 12:13 such has been met by other courts and rejected See Vencedor Mfg PM - Co. Inc. v Gougler Industries Inc. 557 F.2d 886 1st Cir 1977 RICHLAND and more than one court has held that where the defective product has been shipped into the statbey one other than the offending - manufacturer or distributor jurisdiction will still attach See e.g. Gardner v QHS Inc. 304 F. Supp 1247 D.S.C. 1969 Thus where there is a reasonable expectation of a product being brought COMON PLEAS into a state where an injury occurs jurisdiction is valid Hardy v Pioneer Parachute Co. Inc. 531 F.2d 193 4th Cir 1976 - North American Asbestos final contention that the jurisdictional CASE prerequisites of the Long Statute must be met at the time suit is instituted is without support in the decisions See Boney v 2023CP4001759 203CP41759 State Dredging Co. 237 S.C. 54 59 115 S.E.2d 508 510 1960 and Gardner v QHS Inc. supra and Bass v Harbor Light & Marina Inc. 372 F. Supp 786 D.S.C. 1974 and Triplett v R. M. Wade Co. 261 S.C. 419 200 S.E.2d 375 1973 All of the defendant's other contentions have been reviewed and are rejected Accordingly I find asa fact that North American Asbestos has had sufficient contacts so as to justify exercising in personam jurisdiction by this Court and IT IS SO ORDERED Barnwell Barnwel April 7 , S. C. . 1980 Rodnes A.Peeples Peples Rodney A. Peeples Resident Judge Second Judicial Circuit