No. 86-395
IN THE SUPREMF COURT OF THE STATE OF MONTANA
1986
ANNE PETRIK,
P l a i n t i . f f and Appella~t,
-vs-
ROBERT COLFY, D.D.S.,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Jud.icia1 District,
In and for the County of Gallatin,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Eula Compton, Eozeman, Montana
For Respondent:
Berg, Coil, Stokes & Tollefsen; Don M. Hayes,
Rozeman, Montana
Submitted on Briefs: Oct. 30, 1986
Decid-ed: December 31, 1986
n F c 3.1 x~ss
Filed:
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a&
Clerk
r . Justice John C. Sheehy delivering the Opinion of the
Court.
Anne Petrik appeals a decision by the District Court of
the Eighteenth Judicial District, Gallatin County, granting
defendant-respondent Robert Colby's motion to dismiss her
action for lack of personal jurisdiction.
The issue raised on appeal is whether the District Court
had personal jurisdiction over a defendant who had no contact
with the State but who knew or should have known that his
intentional act would cause injury in this state.
In 1978, Dr. Robert Colby, a dentist who 1i~1es and
practices in Tappan, New York, performed a root canal
procedure on fellow New Yorker Anne Petrik. During the
procedure, Dr. Colby broke a dental file, leaving the tip in
Petrik's jaw. Apparently Dr. Colby never informed Petrik of
the complication. Five years after the root canal operation
Petrik moved to Montana.
After she moved to Montana in 1983 the root canal work
developed complications. As a result she brought suit in the
Montana District Court against Dr. Colby in April, 1986,
alleging damages for past and future dental expenses, lost
teeth, disfigurement, and severe pain and suffering. She
alleged these injuries to be the proximate result of Dr.
Co1.by1s failure to warn her of the broken file tip
immediately after the root canal procedure, and hj.s
concealment of the infection it eventually caused. Dr. Colby
was served with summons and complaint under the long-arm
provisions of Rule 4F (1), M.R.Civ.P.
In May, 1986, Dr. Colby successfully challenged the
Gal latin District Court 's - personam
in jurisdiction. Ms.
Petrik is appealing the District Court's order of dismissal,
arguing that - personam jurisdiction is reasonable because
in
Dr. Colby committed an intentional tort and was aware that
injury would accrue in Montana. We are unwilling to adopt
Ms. Petrik's far-reaching interpretation of the state's
long-arm statute, Rule 4B(1), M.R.CFv.P., and therefore
affirm the District Court's order.
There is a two-step analysis used to determine whether
personal jurisdiction exists to allow an. action to be
maintained in the courts of this state. We applied this test
in May v. Figgins (1980), 186 Mont. 383, 386, 607 P.2d 1132,
1134, where we cited the process set forth in 2 Moore's
Federal Practice, Section 4.41-1[1] at 4-421:
The court first must look to the State statute to
determine whether the statute provides for the
exercise of jurisdiction under the particular facts
of the case, and second, the court must determine
whether it would offend due process to assert
jurisdiction.
Appellant Petrik argues that where an intentional tort
is involved (and she contends concealment of the breaking of
the file was fra.udulent misrepresentation, an intentional
tort), and wh.ere a defendant knows that injury from that tort
will accrue in the forum state, the forum state may take
personal jurisdiction regardless of the presence or absence
of minimal contacts. She admits that Dr. Col.by was not
personally found within the state so as to establish
jurisdiction. However, she contends that it is sufficient
for purposes of establishing jurisdiction that Dr. Colby's
acts in New York state were intentional and resulted in the
accrual of a tort within Montana. In other words, she argues
that if Dr. Colby's act was intentional, then the exercise of
jurisdiction comports with due process (and traditional
notions of fair play and substantial justice) simply because
the act was intentional.
The May v. Figgins rule requires that we first look to
our statute to see if it provides for the exercise of
personal jurisdiction under our facts. Montana's long-arm
statute states in pertinent part:
... any person is subject to the jurisdiction of
the courts of this State as to any claim for relief
arising from the doing personally, through an
employee, or through an agent, of any of the
following acts:
(b) the commission of any act which results in
accrual within this State of a tort action.
Rule 4B (1), I4.R.Civ.P.
On this point, the District Court held that the tortious
act accrued in Montana, thereby satisfying the first of the
two May requirements. For the purposes of this case only, we
accept the District Court's finding.
It is the second of the May requirements that prevents
Montana courts from exercising personal jurisdiction. The
issue this second requirement raises is whether the exercj-se
of Montana jurisdiction is consistent with the protections
afforded by the Due Process Clause, that is, whether the
exercise of jurisdiction is fair and reasonable and comports
with the traditional due process notions of fair play and
substantial justice.
The test this Court has adopted to measure the
reasonableness of exercising the state's long-arm statute was
developed by the Ninth Circuit Court of Appeals in Data D ~ S C ,
Inc. v. Systems Technology Assoc. (9th Cir. 1977), 557 F.2d
1280, 1287 and was recently applied by this Court in Simmons
v. State of Montana (Mont. 19831, 670 P.2d 1372, 1376, 4 0
St.Rep. 1650, 1652, and Jackson v. Kroll, Pomerantz and
Cameron (Mont. 1986), 724 P.2d 717, 43 St.Rep. 1622, 1626.
The - - analysis requires examination of seven
Data Disc
basic factors to determine if exercise of - personam
in
jurisdiction is reasonable: 1) The extent of defendant's
purposeful interjection into Montana; 2) The burden on
defendant of defending in Montana; 3) The extent of
conflict with the sovereignty of defendant's
state; 4) Montana's interest in adjudicating the
dispute; 5) The most efficient resolution of the
controversy; 6) The importa.nce of Montana to plaintiff ' s
interest and effective relief; and, 7) The existence of an
alternative forum.
The only contact Dr. Colby has had with the State of
Montana is that his former patient, Anne Petrik, moved to
Montana five years after he performed a root canal operation
on her. Dr. Colby lives and practices in New York. The root
canal work was done in New York. Anne Petrik did not reside
in Montana until 5 years after having had the dental
procedure. There are no allegations that Dr. Colby has done
business in Montana, has assets in Montana, has maintained an
office in Montana, has solicited business in Montana, has
treated Anne Petrik while she has been in Montana, or has had
any telephone conversations or corresponded with Anne Petrik
while she has been in Montana. There is no allegation that
Dr. Colby has had any contact with Montana. There are simply
no facts to indicate that he has purposefully interjected
himself in Montana or purposely availed himself of the
privilege of conducting activities here. Finally, there is
no allega-tionthat justice cannot he had in New York.
The burden on defendant of defending in Montana and
plaintiff's burden of proving the alleged intentional tort of
fraudulent misrepresentation both suggest that New York state
is the most reasonable forum for this action. It offends
this Court's sense of the traditional. notions of fair pl-ay
and substantial- justice to require Dr. Colby to defend t.hi.s
action in Montana. The only contact which Ms. Petrik asserts
Dr. Colby has had with Montana i.s that five years after the
root can3.l work was done he knew that Ms. Petrik was moving
to Montana and should have known that there would be some
harmful effect in Montana.
The reasonableness considerations are not unlike those
in Wright v. Yackley (9th Cir. 1972), 459 ~ . 2 d287. In
Wright, Yackley was a South Dakota doctor who treated Wright
whi1.e Wright was living in South Dakota. Wright moved from
South Dakota to Idaho and sought to have prescriptions given
by Yackley refilled in Idaho. This required confirmation of
the prescriptions from Yackley, which he gave by furnishi.ng
copies of the ori-ginal prescriptions. Wright alleged injury
by the use of the drugs and brought suit in Idaho. The
Federal District Court for Idaho dismissed for lack of
jurisdiction. The Court of Appeals for the Ninth Circuit
affirmed the District Court's action explaining:
[tlhe idea that tortious rendition of such services
is a portable tort which can be deemed to have been
committed wherever the consequences forseeably were
felt is wholly inconsistent with the public
interest in having services of this sort generally
available.
Wright v. Yackley (9th Cir. 1972), 459 ~ . 2 d 289,
at
The Court of Appeals balanced three factors to reach its
determination that -in personam jurisdiction was unreasonable.
.
The first factor is the amount of contact between the
defendant and the forum state. Wright, 459 F.2d at 290-291.
As applied to Dr. Colby, it is clear that there was no
systematic or continuous or indeed any effort on the part of
the doctor to provide services in Montana. The second factor
is "whether the nature of the contacts meant they were
normally grounded outside of any relationship with the forum
state." 459 F.2d at 290. This factor is not met, as the
residence of Ms. Petrik in Kontana was incidental and wholly
unrelated to the benefits provided by Dr. Colby in New York.
Dr. Colby did not purposely avail himself in any way of the
privilege of conduct.j.ng activities within Montana. Hanson v.
Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283.
The final factor is whether the forum state's natural
interest in the protection of its citizens is countered by an
interest in access to medical services whenever needed. Id.
-
This factor is also not applicable. We admit that Montana
has a natural interest in protecting its citizens from injury
by out-of-state doctors. The state also wants to insure that
there are medical services to meet its citizens' needs
wherever they go. However, in the instant case, the dental
service was provided by a New Yorker, Dr. Colby, to a New
Yorker, Anne Petrik. Anne Petrik was not a Montanan who
traveled to New York for the dental work. Here, Anne Petrik
moved to Montana five years after the work was performed,
hence the protection versus access trade-off is not raised.
In sum, the state interest does not, in view of the
Wright and Jackson factors suffice to support exercise of in 7
personam jurisdiction.
The decision of the