On behalf of Bombardier Recreational Products, Inc., we filed a Petition for Certiorari in the United States Supreme Court, with the goal of reversing a California Court of Appeal decision that held that Dow Chemical Canada, ULC, the successor to foreign component part manufacturer of fuel tanks for Bombardier’s personal watercraft, could not be subjected to personal jurisdiction in California, because it did not have direct contacts with California. Bombardier and Dow were originally both defendants in a case brought by California residents who claimed they were injured when the fuel tank on one of Bombardier’s personal watercraft allegedly exploded. Bombardier brought a cross-complaint against Dow for express contractual indemnity as well, alleging that Dow should be responsible for any and all recovery by the injured plaintiffs.
In Dow v. Superior Court (2011) 202 Cal. App. 4th 170, the Court of Appeals for the Second Appellate District, relying on J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. ___, 131 S.Ct. 2785 (2011), held that California courts could not exercise personal jurisdiction over a foreign manufacturer, so long as that company did not directly ship, sell or advertise its products (or components)within the state, or own property or maintain an office or other facility there.
On behalf of Bombardier, we have distinguished McIntyre as inapplicable and limited to its benign and largely nonexistent jurisdictional facts. Among other affirmative arguments, we show that Supreme Court precedent and important public policies support the exercise of personal jurisdiction over foreign component part manufacturers, where as in this case, the foreign manufacturer knows with certainty (and expressly contracts) that a substantial number of its components would be installed into finished products that would be sold to and used by California residents.
A decision on whether our petition will be granted and Supreme Court review undertaken is expected in early fall 2012.