Global Aerospace, Inc. (“Global”), filed this lawsuit in Fulton County Superior Court against Lima Delta Company, Trident AS, and Socikat,
Where, as here, a motion to dismiss for lack of personal jurisdiction is resolved based solely upon written submissions, rather than upon evidence presented at a hearing, “the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.” Hyperdynamics Corp. v. Southridge Capital Mgmt.,
Viewed in the light most favorable to Global, the record shows that Global has its principal place of business in Parsippany, New Jersey and has a regional office in Atlanta.
Trident is a Delaware limited liability company which also has its principal place of business in Wilmington, Delaware; like Lima Delta, its corporate address is the residential address of Dan Piraino, who is a principal in both Lima Delta and Trident. Trident provides aircraft management services, including the provision of pilots and maintenance and navigation services for privately-owned airplanes.
Socikat is the trade name of Societe Commerciale et Industríale Katangaise, a mining company based in the Democratic Republic of Congo (“DRC”) whose principal place of business is in that country. In an affidavit submitted in support of the motion to dismiss, a representative of Socikat acknowledged that “[t]he ultimate owners of Socikat are individuals with personal and business interests in the United States of America, (including Delaware but not including the State of Georgia).” Although it is not clear from the record whether Socikat has ever registered as a U. S. corporation, the address given for Socikat in both the application for
In April 2011, Lima Delta and Socikat executed a trust agreement whereby ownership of a 1989 Gulfstream G-IV airplane (“the airplane”) was transferred from Socikat to Lima Delta.
The record shows that Lima Delta serves as the owner-trustee of approximately 30 aircraft registered with the FAA. Since at least 2008, the Atlanta office of Wells Fargo Insurance Services, USA, Inc. (“Wells Fargo”) has worked with Piraino to procure insurance on at least ten airplanes.
Global eventually issued the Policy, with effective dates of June 22, 2011 through June 22, 2012, and which provided, among other things, $250 million in liability coverage and $8 million in coverage for the airplane itself. The cover page of the Policy states that it was issued through Global’s Atlanta office and that the Policy was brokered by Wells Fargo’s Atlanta office. Global’s invoice for the policy premium bears the address of its Atlanta office, and the invoice was mailed to Wells Fargo’s Atlanta office. The premium payment was made by Trident to Wells Fargo at Wells Fargo’s Atlanta office. The policy itself was received by Wells Fargo at its Atlanta office, and the accompanying correspondence indicates that Wells Fargo was accepting delivery of the Policy on behalf of the insureds and that it would be responsible for forwarding the Policy documents to the insureds. Wells Fargo thereafter mailed the Policy from its Atlanta office to the insureds in Delaware.
On February 12, 2012, the airplane was destroyed in a crash in the DRC, and the crash resulted in at least one claim (for the loss of the airplane) being made under the Policy.
A Georgia court may exercise personal jurisdiction over a nonresident defendant where two requirements are met. First, the defendant must have committed some act or engaged in some activity set forth in Georgia’s Long Arm Statute, OCGA § 9-10-91. Second, the exercise of jurisdiction over a
In this case, if Georgia has personal jurisdiction over the insureds, that jurisdiction rests upon subsection (1) of the Long Arm Statute, which allows the exercise of personal jurisdiction over a nonresident defendant if that party, acting personally or through an agent, “[transacts any business within this [S]tate.” OCGA § 9-10-91 (1). In Innovative Clinical & Consulting Svcs. v. First Nat. Bank of Ames,
Jurisdiction exists on the basis of transacting business in this [S] tate (1) if the nonresident defendant has purposefully done some act or consummated some transaction in this [S]tate, (2) if the cause of action arises from or is connected with such act or transaction, and (3) if the exercise of jurisdiction by the courts of this [Sjtate does not offend traditional notions of fairness and substantial justice.
Aero Toy Store, LLC v. Grieves,
1. Lima Delta, Trident, and Socikat argue that the first prong of the test cannot be satisfied with respect to any of them, because they did not consummate any transaction in Georgia. In support of this argument, they point to the fact that Piraino, who was acting on behalf of all three insured entities, was not physically present in Georgia when the insurance was applied for and negotiated. Instead, he corresponded with Wells Fargo and made the application for insurance via the Internet and telephone from locations throughout the United States (but not Georgia) and around the world. Moreover, the insureds argue that they sent payment for the policy to an address in Texas and they accepted delivery of the policy, through Piraino, at the Delaware address given for all three insureds and for Piraino individually, and that these facts show that the contract for insurance was neither made nor delivered in Georgia. We disagree.
As a threshold matter, we note that the fact that Piraino was not physically present in Georgia during the time he was negotiating and applying for the Policy on behalf of the insureds does not preclude us from finding that he transacted business within this State on behalf of the insureds. In Innovative Clinical, our Supreme Court specifically held that “nothing in subsection (1) [ofOCGA § 9-10-91] requires the physical presence of the nonresident in Georgia or minimizes the import of a nonresident’s intangible contacts with the State.”
Moreover, regardless of Piraino’s physical presence in or absence from Georgia, the evidence shows that the Atlanta office of Wells Fargo was acting as the agent of the insureds. It is undisputed that Wells Fargo is an independent insurance broker and, under Georgia law, “independent agents or brokers are generally considered the agent of the insured, not the insurer.” Pope v. Mercury Indem. Co. of Georgia,
Acting as the agent of appellants, the Atlanta office of Wells Fargo contacted the Atlanta office of Global and proceeded to negotiate the Policy. As noted previously, the Policy itself reflects that it was issued through Global’s Atlanta office and that the Policy was brokered by Wells Fargo’s Atlanta office. Global’s invoice for the Policy premium bears the address of its Atlanta office, and it was mailed to Wells Fargo’s Atlanta office. The premium payment was made by Trident to Wells Fargo at Wells Fargo’s Atlanta office, and Wells Fargo accepted delivery of the Policy on behalf of the insureds at its Atlanta office. These facts demonstrate that the Policy was applied for, negotiated, paid for, and delivered in Atlanta. Accordingly, the evidence shows that the insureds, through their agent, transacted business in Georgia. See Aero Toy Store,
2. Given that this action is for rescission of the Policy and for a declaration as to its terms, the lawsuit arises out of the parties’ Georgia business transaction. Accordingly, the second prong of the personal jurisdiction test is satisfied. See Paxton v. Citizens Bank and Trust of West Ga.,
3. We now turn to the question of whether Georgia’s exercise of jurisdiction over the insureds comports with “traditional
evaluate [those] factors that impact on the reasonableness of asserting jurisdiction, such as the burden on defendant, 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 states in furthering substantive social policies.
ATCO Sign & Lighting Co.,
Here, the insureds have identified no logistical or financial difficulties in defending a case in Georgia that would unduly burden them. In this regard, we again note that this case involves the application for the Policy and that the evidence will consist primarily of documents and testimony. As best we can tell from the record, the bulk of the documents relating to the insurance application will be located in the Atlanta offices of Global and Wells Fargo. Additionally, the insureds have identified Hanes and Dean Anderson, two employees in the Atlanta office of Wells Fargo, as “the two most critical fact witnesses in this case.”
We further note that Piraino, who is a principal in both Lima Delta and Trident, is a pilot who routinely flies throughout the United States and internationally. Thus, it does not appear that traveling from Delaware to Atlanta for trial will unduly burden the representatives of Lima Delta and Trident. And although Socikat’s principal place of business is in the DRC, the company has conceded that it has business interests throughout the United States and that jurisdiction over it would be appropriate in Delaware. The company has failed to come forward with any evidence, however, showing that traveling to Atlanta for trial would be more burdensome for its representatives, either logistically or financially, than traveling to Delaware.
We also find that Georgia has a significant interest in adjudicating this dispute, as it appears that Georgia law will apply.
when a contract is made and to be performed in one state, its validity, nature, construction, and interpretation are governed by the substantive law of that state. When a contract is made in one state and is to be performed in another state, the substantive law of the state where the contract is to be performed applies.
Id. (citations omitted). Here, the Policy provided worldwide coverage, and it therefore had no particular place of performance. And because “insurance contracts often have no particular place where performance is contemplated,” Georgia generally applies “the law of the place where the contract was made.” Fed. Ins. Co. v. Nat. Distributing Co.,
Finally, the fact that the majority of the relevant evidence and the two “most
As the foregoing discussion demonstrates, the insureds are not being forced to litigate in Georgia because of random, fortuitous, or attenuated circumstances. Thus, “considering the relevant factors, we find that neither reasonableness nor fair play nor substantial justice would be offended by haling [the insureds] into a Georgia court and exercising jurisdiction over [them].” Noorani v. Sugarloaf Mills Ltd. Partnership of Ga.,
For the foregoing reasons, we affirm the order of the trial court denying the appellants’ motion to dismiss.
Judgment affirmed.
Notes
Global also named as defendants Trident Aviation Services, LLC and Trident Aviation Services, Inc. Those defendants, together with the named insured Trident AS, are referred to collectively herein as “Trident.” Other defendants named by Global include Socikat, Sokicat-CN Aviation, Socikat-CN Aviation, and CN Aviation. These entities, together with the named insured Sokicat, are referred to collectively herein as “Socikat.”
This policy provides liability coverage for the operation of the airplane as well as property coverage for damage to or loss of the airplane itself.
Although appellants assert that Global is a Delaware corporation headquartered in London, England with its principal place of business in New Jersey, the record reflects only that Global’s principal place of business is in Parsippany. There is no evidence indicating in which state Global is incorporated or which indicates that Global is “headquartered” in London.
Lima Delta thereafter registered the airplane with the FAA, and it was assigned registration number N2SA.
These policies include the one at issue as well as other policies procured on behalf of Lima Delta, Trident, and companies identified as DTP, LLC, CN Aviation, and November Whiskey, Inc.
The record shows that several people, including the flight crew, were killed in the crash and that others were injured. There is no evidence, however, that the insureds have sought coverage under the Policy’s liability coverage provisions.
We reach this conclusion regarding the applicability of Georgia law based on the current record. We recognize, however, that additional evidence which affects this question may come to light during discovery. If such additional evidence is produced, then it will be for the trial court to decide, in the first instance, whether Georgia law controls this case.