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Florida First DCA rules that corporate shield doctrine bars personal jurisdiction over nonresident corporate officer named as defendant with corporate employer in wrongful death case

On December 28, 2018, in LaFreniere v. Craig-Myers, No. 1D18-1918, the Florida First DCA reversed a trial court’s denial of a defendant’s motion to dismiss in a wrongful death case for lack of personal jurisdiction. The defendant is the Vice President and General Counsel of Otis Elevator Company, a codefendant in the wrongful death case. The plaintiff is the personal representative of the estate of a former employee of Otis Elevator Company who was killed while repairing an elevator. The General Counsel of the company was included as a named defendant in the complaint due to allegations the she participated in a variety of OSHA violations that allegedly led to the decedent’s death. The General Counsel moved to dismiss the complaint against her for lack of personal jurisdiction. She attached an affidavit in support of her motion, attesting that she does not exercise supervisory control over Otis North America’s local branch offices. She further stated that although she “may have limited contact on occasion” with Otis North America’s outside legal counsel, it is the company’s in-house counsel, not Appellant, who directly supervises and controls outside legal counsel. Florida’s long-arm statute, Fla. Stat. 48.193, extends specific personal jurisdiction over nonresidents in certain situations, including defendants who operate a business in the state or commit a tortious act in the state. The corporate shield doctrine precludes the exercise of such jurisdiction over a corporate employee if premised on acts performed in a corporate capacity, see Doe v. Thompson, 620 So. 2d 1004, 1005 (Fla. 1993), but an exception exists if the corporate employee committed negligent acts in Florida. See Kitroser v. Hurt, 85 So. 3d 1084, 1090 (Fla. 2012). Quoting from the U.S. Supreme Court’s decision in Calder v. Jones, 465 U.S. 783, 783-84 (1984), the First DCA noted that the defendant need not have physically committed tortious acts in Florida if the acts constituted intentional tortious acts “expressly aimed at” Florida with knowledge of the defendant that it “would have a potentially devastating impact” upon the victim.” However. the Court premised its ruling on the “threshold question” of whether the complaint sufficiently stated a cause of action for an intentional tort. The First DCA noted that the complaint alleged an exception to Workers’ Compensation Employer/Manager Immunity provided in Fla. Stat. 440.11(1)(b)2, and that under this statutory exception the tortious conduct must have been “virtually certain to result in injury or death to the employee.” The First DCA concluded that the alleged conduct by the defendant was not “virtually certain” to result in death or injury.