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§63.13B Seller Liability Because of Inability to Serve Process on Manufacturer of Product

The Case:  Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686 (Tenn. 2011).

The Basic Facts:  Plaintiff brought wrongful death claim arising from death of her husband from mesothelioma.  Husband was exposed to asbestos at his place of employment.  She sued North Brothers, Inc., the company that sold products containing asbestos to the employer, alleging that the products were defective and that the seller failed to warn of the danger.  Seller defended on multiple grounds, including that it did not manufacture the product and thus could not be held liable under Tennessee law.  Plaintiff claimed the manufacturers were not subject to service of process, thus triggering seller liability.

The Bottom Line:


·    “We next consider whether Owens Corning, Pittsburgh Corning, Raybestos, or Johns Manville were ‘not subject to service of process’ so as to trigger the provisions of section 29-28-106(b).” 347 S.W.3d at 694.


·  “The statutory phrase ‘not subject to service of process’ is unambiguous; therefore, we look to the plain and ordinary meaning of the statute. The phrase ‘subject to’ is defined as ‘liable to receive; exposed (with to).’ Webster’s New World Dictionary of the English Language 1452 (1966). The word ‘service’ is defined as ‘[t]he formal delivery of a writ, summons, or other legal process’ and is ‘[a]lso termed service of process.Black’s Law Dictionary 1372 (7th ed.1999) (emphasis in original). Correspondingly, ‘process’ is defined as ‘[a] summons or writ, esp. to appear or respond in court < service of process>.’ Id. at 1222.  ‘Service of process,’ therefore, necessarily presumes the existence of an underlying lawsuit for which a summons or writ was issued. The plain and ordinary meaning of the phrase ‘not subject to service of process’ means not exposed to or liable to receive a summons to appear in court on a underlying lawsuit.”  Id..


·      “All of the manufacturers filed a petition under Chapter 11 of the federal Bankruptcy Code, codified at 11 U.S.C. §§ 101-1532 (2006 & Supp. 2010).  Upon the filing of the Chapter 11 petition, the automatic stay provision applied, 11 U.S.C. § 362(a), and each manufacturer was allowed to maintain its business operations while restructuring its debt obligations pursuant to a submitted plan of reorganization. See 11 U.S.C. §§ 1101-1174. The automatic stay provision, in pertinent part, provides that a petition operates as a stay of (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title. 11 U.S.C. § 362(a) (2006).”  Id. at 694-95 (footnote omitted).


·    “[The court went on to discuss the pre-petition relationship test announced in] Jen-Weld, Inc. v. Van Brunt (In re Grossman’s, Inc.) 607 F.3d 114 (3d Cir. 2010)…. Applying the pre-petition relationship test to Mrs. Nye’s claim, we conclude that her claim arose when her husband was exposed to asbestos-containing products. Therefore, these manufacturers were not subject to service of process in Tennessee because Mrs. Nye’s claims against these manufacturers arose before the filing of their bankruptcy cases.”  Id. at 697.


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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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