                                                   This opinion was filed for record
                                              at   8'. 00 OJ,,\ ooJ~) UJC]
                                                   .o~A--o<.~
                                                       SUSAN L. CARLSON
                                                     SUPREME .COURT CLERK
          IN THE SUPREME COURT OF THE STATE OF WASHINGTON



DONALD NOLL and CANDANCE NOLL,            )
husband and wife,                         )   No. 91998-4
                                          )
                 Respondents,             )
                                          )
     v.                                   )
                                          )
AMERICAN BILTRITE INC.; AMETEK            )
INC.; BIRD INCORPORATED;                  )
BORGWARNER MORSE TEC INC., as             )
successor-by-merger to BORG-WARNER        )
CORPORATION; CBS CORPORATION, a           )
Delaware corporation f/k/a VIACOM INC.,   )
successor-by-merger to CBS                )
CORPORATION, a Pennsylvania corporation   )
f/k/a WESTINGHOUSE ELECTRIC               )
CORPORATION; CERTAIN-TEED                 )   En Banc
CORPORATION; CONWED                       )
CORPORATION; DOMCO PRODUCTS               )
TEXAS INC.; FORD MOTOR COMPANY;           )
GENERAL ELECTRIC COMPANY;                 )
GEORGIA-PACIFIC LLC; HERCULES             )
INCORPORATED;HONEYWELL                    )
INTERNATIONAL INC.; INDUSTRIAL            )
HOLDINGS CORPORATION f/k/a THE            )
CARBORUNDUM COMPANY;                      )
INGERSOLL-RAND COMPANY; J-M               )
MANUFACTURING COMPANY INC.;               )
KAISER GYPSUM COMPANY INC.;               )
KELLY MOORE PAINT COMPANY INC.;           )
SABERHAGEN HOLDINGS INC.;                 )
SIMPSON LUMBER COMPANY LLC;               )
and SIMPSON TIMBER COMPANY,               )
                                          )
                 Defendants,              )   Filed      JUN O8 2017
                                          )
No. 91998-4


SPECIAL ELECTRIC COMPANY, INC.,                   )
                                                  )
                     Petitioner.                  )




       MADSEN, J.-For a Washington court to exercise specific personal jurisdiction

over a defendant, the plaintiff must allege that the defendant purposefully availed itself of

the privilege of doing business in Washington, thus invoking the benefits and protections

of our laws. Without any such allegation, exercising jurisdiction would not comport with

due process. In this case, Special Electric Company Inc. asks us to reverse the Court of

Appeals because that court found Washington could exercise specific personal

jurisdiction over Special Electric under a stream of commerce theory without any

allegation that Special Electric purposefully availed itself of Washington's laws.

Because the parties and trial court did not have the benefit of our recent decision in State

v. LG Electronics, Inc., 186 Wn.2d 169, 375 P.3d 1035 (2016), cert. denied, 137 S. Ct.

648 (2017), or the recently disclosed evidence of Special Electric' s unrelated contacts in

Washington, we remand this case to the trial court. We accepted review in this case,

however, because we disagree with the Court of Appeals' application of LG Electronics,

and this case offers an opportunity for us to give guidance to the lower courts on what a

plaintiff must allege for specific personal jurisdiction. Based on the allegations currently

before us, we agree that Donald Noll did not allege sufficient facts for Washington to

exercise specific personal jurisdiction over Special Electric. Therefore, the trial court

properly dismissed the case without prejudice. We do not, however, intend to preclude




                                              2
No. 91998-4


the trial court from making its own finding of jurisdiction on remand depending on the

allegations that the plaintiff then raises.

                                              FACTS

       Noll I sued a number of manufacturers, sellers, and suppliers of asbestos and

asbestos-containing products, including Special Electric. Noll alleged that he developed

malignant mesothelioma2 from exposure to asbestos when he worked construction in

Washington between 1977 and 1979 cutting asbestos-cement pipes. Those asbestos-

cement pipes were manufactured by Certain-Teed Corporation, and Certain-Teed

received most of its asbestos from Special Electric. Special Electric moved to dismiss on

the basis that the trial court lacked specific personal jurisdiction over it because its

contacts were limited to the California-based corporation, Certain-Teed, and did not

extend to Washington.

       Special Electric was incorporated in Wisconsin by Richard Wareham in 1957 and

operated as a business that sold and distributed electrical insulation products. Wareham

operated multiple companies with the "Special" moniker, including: Special Electric,

Special Materials, and Special Asbestos. Special Electric is the named defendant in this

suit. Special Electric is a corporation that exists only to hold insurance policies providing

coverage for asbestos related injuries and to handle claims filed by those injured because

of asbestos exposure from asbestos that the various Special companies sold. See

Melendrez v. Superior Court, 215 Cal. App. 4th 1343, 156 Cal. Rptr. 3d 335 (2013)

1
  After Donald Noll passed away in September 2013, his wife, Candance Noll, took over the case
as the personal representative of his estate. This opinion refers to Donald Noll and the estate as
"Noll" for simplicity.
2
  Malignant mesothelioma is a cancer of the lining around the lungs.
                                                3
No. 91998-4


(outlining the recent history and status of Special Electric and related Special companies).

Special's 3 principal place of business was Milwaukee, Wisconsin, and it had offices in

eight states but none in Washington.

       Between 1975 and 1981, Special supplied crocidolite asbestos to Certain-Teed for

use in asbestos-cement pipe. Special had a five-year requirements contract with

Certain-Teed's plant in Santa Clara, California, beginning in 1978. Certain-Teed

manufactured and distributed asbestos-cement pipes on a national scale, and it

specifically sold its product in Washington. Special also supplied Certain-Teed's Santa

Clara plant with chrysotile asbestos during the late 1970s and early 1980s. Certain-Teed

sales records show that it delivered asbestos-cement pipes to Washington from its Santa

Clara plant. Between 1977 and 1979, Certain-Teed made at least 31 shipments of

asbestos-cement pipes to Washington, totaling 55,000 linear feet.

       Noll worked in Port Orchard, Washington, for a construction company between

1977 and 1979. In a deposition taken before his death, Noll testified that he was exposed

to asbestos dust when cutting asbestos-cement pipe-both when he cut pipe and when

other workers cut pipe around him. Certain-Teed had manufactured the pipe. Noll

developed malignant pleural mesothelioma and died in 2013.

       In the complaint, Noll alleged that "Defendants and/or their predecessors-in-

interest are corporations who, at all times relevant herein, manufactured, sold or

distributed asbestos-containing products or products that were used in conjunction with

3
 For purposes of the motion to dismiss based on lack of specific personal jurisdiction, Special
Electric assumed arguendo that it is responsible for the actions of Special Materials and Special
Asbestos. For simplicity, this opinion refers to all the Special companies as "Special" as the
parties and courts below have done.

                                                4
No. 91998-4


asbestos." Clerk's Papers at 2. Further, Noll alleged that he "was exposed to asbestos

and asbestos-containing products which had been mined, manufactured, produced, and/or

placed into the stream of commerce by the defendants and/or was exposed to asbestos

through the use of products manufactured by defendants. As a direct and proximate

result of this exposure, plaintiff Donald Noll developed mesothelioma." Id. For

jurisdiction, Noll alleged, "This Court has jurisdiction over this cause pursuant to RCW

4.12.025 because, at all times relevant herein, defendants transacted business and/or may

be served with process in [King] County, Washington." Id.

       Special moved to dismiss for lack of specific personal jurisdiction. Special argued

that Noll had alleged no facts in support of its conclusory statement that the defendants

transacted business in Washington. And, Special argued, no such facts exist. According

to Special, the following facts demonstrate that it does not have sufficient contact with

Washington to support jurisdiction: it has never been licensed to do business in

Washington; none of its officers, directors, or employees reside or are domiciled in

Washington; it never had offices in Washington; it has no bank accounts or property in

Washington; it does not pay taxes in Washington; and it has no agents in Washington. In

response, Noll argued the facts detailed above: Special provided Certain-Teed with large

quantities of asbestos, Certain-Teed used that asbestos to manufacture asbestos-cement

pipes, Certain-Teed sold those pipes in Washington, and those pipes exposed Noll to

asbestos.

       The superior court granted Special' s motion to dismiss for lack of specific

personal jurisdiction. The court considered Special's motion to dismiss and

                                             5
No. 91998-4


accompanying declaration, Noll's brief in opposition, and Special's reply. Noll moved

for reconsideration and submitted evidence to support that motion. The trial court

granted that motion in part. After considering the additional evidence that Noll

provided, 4 the court upheld its dismissal for lack of specific personal jurisdiction but

changed the order so that the case was dismissed without prejudice, as required by

Washington law. See State v. Nw. Magnesite Co., 28 Wn.2d 1, 42, 182 P.2d 643 (1947)

(dismissals based on lack of personal jurisdiction are without prejudice because the court

has no power to pass upon the merits of the case).

       Division One of the Court of Appeals reversed and found that Noll had alleged

sufficient facts for the trial court to exercise specific personal jurisdiction over Special.

Noll v. Am. Biltrite, Inc., 188 Wn. App. 572, 355 P.3d 279 (2015). According to the

Court of Appeals, the record shows that Special supplied approximately 95 percent of the

asbestos that Certain-Teed used to manufacturer asbestos-cement pipe at its Santa Clara,

California, plant. Id. at 577. By supplying that asbestos to Certain-Teed, "Special

regularly supplied raw asbestos for the manufacture of pipe that moved into Washington

through established channels of sale." Id. at 578. The Court of Appeals acknowledged

that Justice Breyer's concurring opinion in J. McIntyre Machinery Ltd. v. Nicastro, 564

U.S. 873, 131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011) (plurality opinion), is the controlling

opinion. Noll, 188 Wn. App. at 581. It then concluded that a Washington court could


4
 The additional evidence contained documents showing how extensive the relationship between
Special and Certain-Teed was. It also showed that all of the asbestos-cement pipe that
Certain-Teed manufactured included crocidolite asbestos, and that Special provided 95 percent
of Certain-Teed's crocidolite asbestos. The trial court found that this additional evidence did not
change its analysis.
                                                 6
No. 91998-4


assert specific personal jurisdiction over Special under a stream of commerce theory

because the product was a known hazardous material, one of the factors mentioned by

Justice Stevens in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S. Ct.

1026, 94 L. Ed. 2d 92 (1987), and the asbestos was supplied for use in making large

quantities of pipe distributed through existing channels of interstate commerce. Noll, 188

Wn. App. at 583. According to the Court of Appeals, the regular flow or course of sales

distinguished this case from J McIntyre because a "plaintiff is not required to prove both

a regular flow and 'something more."' Id. Although the Court of Appeals

acknowledged that the record did not show that Special had knowledge that Certain-Teed

distributed its pipe outside of California, "[t]he volume of Special's shipments of

asbestos to Certain-Teed' s Santa Clara manufacturing plant, coupled with the volume of

finished pipe distributed into Washington by Certain-Teed, signifies that Special

purposefully availed itself of the protection of Washington law." Id. at 585.

       Special petitioned this court for review. We originally stayed the petition pending

our decision in LG Electronics, 186 Wn.2d 169. When that decision became final, we

granted Special's petition. The Washington Defense Trial Lawyers Association

(WDTL), which had written in support of granting review, moved to submit an amicus

curiae brief, which was granted.

       After the parties submitted supplemental briefing in this court, Special moved to

clarify the record. In its clarification, Special provided evidence that Special Materials

and Special Asbestos had contracts with two Washington companies during the relevant

period. The evidence appears to show shipment receipts for at least hundreds of tons of

                                              7
No. 91998-4


asbestos from Special Asbestos and Special Materials to Auburn, Washington, and

Seattle, Washington, from 1976 to 1980. These Washington companies are not parties to

this suit and seem to be unrelated to Noll's exposure and injuries. Because these contacts

are not transactionally related to Noll's claim, they are not relevant for specific personal

jurisdiction, which is the only basis of jurisdiction the parties have argued thus far. 5

                                           ANALYSIS

       Where the underlying facts are not in dispute, this court reviews de nova a trial

court's decision to dismiss for lack of personal jurisdiction. FutureSelect Portfolio

Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 180 Wn.2d 954, 963, 331 P.3d 29 (2014);

Precision Lab. Plastics Inc. v. Micro Test, Inc., 96 Wn. App. 721, 725, 981 P.2d 454

(1999). We accept the allegations of the complaint as true, and the plaintiff must provide

evidence sufficient to make a prima facie showing that jurisdiction is proper. Precision,

96 Wn. App. at 725.

       "The Due Process Clause of the Fourteenth Amendment sets the outer boundaries

of a state tribunal's authority to proceed against a defendant." Goodyear Dunlop Tire

Operations, SA v. Brown, 564 U.S. 915,923, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011);

U.S. CONST. amend. XIV. Under Washington's long arm jurisdiction statute, RCW

4.28.185, personal jurisdiction exists in Washington over nonresident defendants and

foreign corporations as long as it complies with federal due process. Shute v. Carnival

Cruise Lines, 113 Wn.2d 763, 766-67, 783 P.2d 78 (1989) (quoting Deutsch v. W. Coast

5
  For general personal jurisdiction, we analyze all of the defendant's contacts with the forum
state. But for specific personal jurisdiction, we look to only those contacts related to the claim at
issue. See Goodyear Dunlop Tire Operations, SA v. Brown, 564 U.S. 915, 919-24, 131 S. Ct.
2846, 180 L. Ed. 2d 796 (2011).
                                                  8
No. 91998-4


Mach. Co., 80 Wn.2d 707,711,497 P.2d 1311, cert. denied, 409 U.S. 1009 (1972). Due

process requires three elements be met for a court to extend personal jurisdiction: "( 1)

that purposeful 'minimum contacts' exist between the defendant and the forum state; (2)

that the plaintiffs injuries 'arise out of or relate to' those minimum contacts; and (3) that

the exercise of jurisdiction be reasonable, that is, that jurisdiction be consistent with

notions of 'fair play and substantial justice."' Grange Ins. Ass 'n v. State, 110 Wn.2d 752,

758, 757 P.2d 933 (1988) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-

78, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)). The central concern of the federal inquiry

is the relationship between the defendant, the forum, and the litigation. See J. McIntyre,

564 U.S. at 881; Int'! Shoe Co. v. Washington, 326 U.S. 310,319, 66 S. Ct. 154, 90 L.

Ed. 95 (1945).

       There are two approaches to personal jurisdiction: specific and general. See

Daimler AG v. Bauman,_ U.S._, 134 S. Ct. 746, 754-55, 187 L. Ed. 2d 624 (2014).

Specific personal jurisdiction analyzes the defendant's contacts with the forum state that

are related to the plaintiffs claims and arose or existed at the time that the relevant event

occurred. Goodyear, 564 U.S. at 923-24. General jurisdiction analyzes all of the

defendant's contacts with the forum state, regardless of their relationship to the claims at

issue. Id. at 924. General jurisdiction requires extensive and systematic contacts with the

forum state. Id. at 919. Specific jurisdiction requires only minimum contacts. Int'! Shoe,

326 U.S. at 316. In the present case, Noll has alleged only specific personal jurisdiction.

Therefore, we address only specific jurisdiction. We note, however, that the recently

disclosed evidence of Special's substantial business connections to Washington unrelated

                                               9
No. 91998-4


to Noll's claim may be relevant to a claim of general jurisdiction. But the parties have

made no argument-either in this court or the courts below-based on general

jurisdiction. Thus, we will not comment on whether Washington courts may exercise

jurisdiction under a general jurisdiction theory.

       Noll did not allege sufficient facts for Washington courts to exercise
       specific personal jurisdiction over Special under the stream of commerce
       doctrine

       This court recently decided LG Electronics, a case also involving specific personal

jurisdiction for a stream of commerce case. There, we found the trial court could

exercise specific personal jurisdiction over the defendants because the State had alleged

that the defendants dominated the global market for their products, 6 sold the products into

international streams of commerce with the intent that the product would come into

Washington, and intended their price-fixing activity to elevate prices in Washington. See

186 Wn.2d at 182. This case does not require us to reconsider the legal principles we

recently set forth in LG Electronics. Because Noll failed to allege any action by Special

to purposefully avail itself of Washington's laws, the trial court properly dismissed the

case for lack of specific personal jurisdiction.

       To establish purposeful minimum contacts, the defendant must do some act that

'"purposefully avails itself of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws."' Burger King, 471 U.S. at

6
  The product at issue in LG Electronics was cathode ray tubes (CRT), a display technology that
was used in televisions and computer monitors. According to the State's complaint, North
America was the largest market for CRT; in 1995 alone, 28 million CRT monitors were
purchased in North America; over 90 percent of the retail market for monitors were CRT; 73
percent of televisions were CRT; and four of the defendants held a collective 78 percent share of
the global CRT market. 186 Wn.2d at 173-74.
                                               10
No. 91998-4


475 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283

(1958)). A foreign distributor does not purposefully avail itself when a sale in the forum

state is an isolated occurrence or when the unilateral act of a third party brings the

product into the forum state. LG Elecs., 186 Wn.2d at 177 (citing World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S. Ct. 559, 62 L. Ed. 2d 490

(1980)). The stream of commerce theory also does not allow jurisdiction based on the

mere foreseeability that a product may end up in the forum state. Id. "Instead, the

defendant's conduct and connection with the state must be such that it should reasonably

anticipate being haled into court there." Id. at 178.

       The stream of commerce cases from the United States Supreme Court in recent

years have been deeply fragmented and have produced no clear majorities. See, e.g., J

McIntyre, 564 U.S. 873; Asahi, 480 U.S. 102. But, as we recognized in LG Electronics,

when a Supreme Court case is fragmented, the holding of the Court is the position that is

taken by the concurring opinion decided on the narrowest grounds. 186 Wn.2d at 180-81

(quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260

(1977)). Thus, we concluded that Justice Breyer's concurring opinion in J McIntyre

represents the Supreme Court's most recent holding. Id. at 181.

       In J McIntyre, Justice Breyer held that a foreign manufacturer's sale of products

through an independent, nationwide distribution system is not sufficient, without

something more, for a state to assert personal jurisdiction over the manufacturer when

only one product enters the forum state and causes injury. Id. (citing J McIntyre, 564

U.S. at 888-89 (Breyer, J., concurring)). Our court found that J McIntyre thus "did not

                                              11
No. 91998-4


foreclose an exercise of personal jurisdiction over a foreign defendant where a substantial

volume of sales took place in a state as part of the regular flow of commerce." Id. at 181.

And the allegations in LG Electronics-that the defendants dominated the global market

for their product, sold their product into international streams of commerce with the

intent that the product would come into Washington, and intended their price fixing to

elevate prices in Washington-were sufficient to survive the motion to dismiss. Id. at

182.

       As stated above, this case does not require us to delve any deeper into the stream

of commerce doctrine than we did in LG Electronics because Noll did not allege any acts

by Special to purposefully avail itself of the privilege of doing business in Washington.

The Supreme Court recently reaffirmed that the relevant relationship must arise out of the

contacts that the defendant itself creates with the forum state. Walden v. Fiore,           U.S.

_, 134 S. Ct. 1115, 1122, 188 L. Ed. 2d 12 (2014) (citing Burger King, 471 U.S. at

475). 7 The Court has consistently rejected attempts to satisfy the "defendant-focused

'minimum contacts' inquiry" by demonstrating contacts between a third party and the

forum state. Id. (citing Helicopteros Nacionales de Colombia, SA v. Hall, 466 U.S. 408,

417, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) ("[The] unilateral activity of another party


7
  Walden is an intentional tort case. Thus, the Court ultimately applied the Calder effects test for
jurisdiction. See Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984); see
also LG Elecs., 186 Wn.2d at 194-95 (Gordon McCloud, J., concurring/dissenting). But as the
Court in Walden explained, the same general principles apply to both minimum contacts
inquiries. Walden, 134 S. Ct. at 1122-23 (outlining minimum contacts tests from stream of
commerce cases, then stating, "These same principles apply when intentional torts are
involved"). Noll argues that amicus WDTL "exaggerates the import of Walden" because Walden
is meant to apply only to intentional tort cases, not stream of commerce cases. But this
argument, as explained above, loses sight of the core teaching.
                                                 12
No. 91998-4


or a third person is not an appropriate consideration when determining whether a

defendant has sufficient contacts with a forum State to justify an assertion of

jurisdiction.")). "Due process requires that a defendant be haled into court in a forum

State based on his own affiliation with the State, not based on the 'random, fortuitous, or

attenuated' contacts he makes by interacting with other persons affiliated with the State."

Id. at 1123 (quoting Burger King, 471 U.S. at 475). In this case, amicus WDTL argues

that the Court of Appeals' decision erred under Walden because it failed to limit its focus

to Special's suit-related conduct. Amicus WDTL's argument is persuasive on this point.

The Court of Appeals focused on Special delivering asbestos to Certain-Teed's plant in

California and Certain-Teed then purposefully availing itself of Washington's laws by

selling large quantities of asbestos-cement pipes to Washington companies. But the

Court of Appeals acknowledged that Special may not have been aware that Certain-Teed

was supplying the asbestos-cement pipes to companies in Washington, and it did not

require any other evidence that Special purposefully availed itself of Washington's laws.

       The only connection to Washington that Noll alleged was the unilateral act of an

out-of-state third party, Certain-Teed. Noll did not allege that Special was aware of

Certain-Teed's connection to Washington. Noll did not allege that Special was aware

that Certain-Teed delivered any of its pipes outside of California. That Special delivered

large quantities of asbestos into California is not sufficient to say it purposefully availed

itself of the privilege of doing business in Washington, thus invoking the protection of

our laws.




                                              13
No. 91998-4


       Noll argues that Special is reading an "actual knowledge" requirement into

specific personal jurisdiction. Special and amicus WDTL both argue that there is, at

least, an awareness requirement throughout personal jurisdiction cases. But this court

need not decide if showing actual knowledge or awareness is necessary, or sufficient, to

finding specific personal jurisdiction in stream of commerce cases. The relevant question

is whether the plaintiff has alleged something to show that the defendant purposefully

availed itself of the privilege of doing business in the forum state. Here, Noll failed to

allege any action taken by Special to purposefully avail itself of the benefits and

protections of the Washington market. Showing only that an out-of-state manufacturer

sold a component part to another out-of-state manufacturer who then sold the finished

product into Washington is not enough to confer specific personal jurisdiction in

Washington.

                                      CONCLUSION

       We remand this case to the trial court because the parties and trial court did not

have the benefit of LG Electronics or the recently disclosed evidence of Special's other

contacts in Washington. To help guide the lower courts of our state, however, we reject

the Court of Appeals' application of LG Electronics and hold that, based on the record

before us, the trial court properly dismissed this case for lack of specific personal

jurisdiction over Special because Noll did not allege sufficient facts to show Special

purposefully availed itself of the privilege of doing business in Washington.




                                              14
No. 91998-4




WE CONCUR:




              15
Noll v. Am. Biltrite, Inc.




                                 No. 91998-4

       GONZALEZ,    J. (concurring)-The only issue presented in this toxic tort

case is whether Washington has specific personal jurisdiction over defendant

Special Electric Company Inc., a Wisconsin corporation. Plaintiff Donald

Noll died of malignant mesothelioma following exposure to asbestos when

he worked in construction cutting asbestos-cement pipes. Noll alleges that

Special Electric was one supplier of that asbestos. He alleges that Special

Electric sold asbestos to Certain-Teed Corporation in California, and that

Certain-Teed used the raw asbestos product to manufacture asbestos-cement

pipes that were later sold in Washington. Personal jurisdiction therefore

hinges on whether Special Electric's activities in the stream of commerce are

sufficient to support jurisdiction in Washington. We recently recognized the

confusion surrounding the stream of commerce test caused by the various

plurality decisions from the Supreme Court and sought to provide clarity

regarding the scope of that test in State v. LG Electronics, Inc., 186 Wn.2d

169, 176-83, 375 P.3d 1035 (2016), cert. denied, 137 S. Ct. 648 (2017). Our
Noll v. Am. Biltrite, Inc., No. 91998-4 (Gonzalez, J., concurring)

decision in LG Electronics was issued after the trial court had dismissed

Special Electric as a party from this case for lack of personal jurisdiction.

      The majority recognizes that the parties and the trial court should have

had the benefit of our recent LG Electronics decision but then holds such

guidance would not have mattered because "the trial court properly

dismissed the case without prejudice." Majority at 2. Curiously, the

majority would allow Noll to reargue the jurisdictional issue with new facts

on remand even though his case against Special Electric would no longer

exist under the majority's holding. Id. Because I would reverse and remand

this case to the trial court to consider the application of LG Electronics to the

facts as alleged, I respectfully concur in result only.

      Moreover, I view the majority's analysis as a marked departure from

LG Electronics that seeks to redefine and restrict the boundaries of personal

jurisdiction. In LG Electronics, this court accepted the test articulated by

Justice Breyer in J. McIntyre as the Supreme Court's most recent

articulation of the stream of commerce test. 186 Wn.2d at 181 (citing J.

McIntyre Machinery Ltd. v. Nicastro, 564 U.S. 873, 887-93, 131 S. Ct. 2780,

180 L. Ed. 2d 765 (2011) (Breyer, J., concurring) (plurality opinion)).

Under that test, "a foreign manufacturer's sale of products through an

independent nationwide distribution system is not sufficient, absent



                                        2
Noll v. Am. Biltrite, Inc., No. 91998-4 (Gonzalez, J., concurring)

something more, for a State to assert personal jurisdiction over a

manufacturer when only one product enters a state and causes injury." Id. 1

       We applied this test in LG Electronics and determined that global

market domination tied with an intent to fix domestic prices, including

prices in Washington, was enough to satisfy that "something more." Id. at

182. We never said specific forum targeting or awareness that one's

products were entering that forum state was required to satisfy that

"something more." Indeed, we specifically recognized that "J McIntyre did

not foreclose an exercise of personal jurisdiction over a foreign defendant

where a substantial volume of sales took place in a state as part of the

regular flow of commerce." Id. at 181. Yet, the majority requires more.

Majority at 13.

       While the majority purports to adhere to LG Electronics and even

disclaims that it is adopting an "actual knowledge" requirement, it concludes

there is insufficient evidence to support specific personal jurisdiction in this

case against Special Electric because "Noll did not allege that Special was

1
  Justice Breyer left what minimum activities qualify as "something more" undefined.
We know he would require more than the placement of products into the stream of
commerce with knowledge that one of those products might end up being sold in the
forum state. LG Elecs., 186 Wn.2d at 180 (quoting J. McIntyre, 564 U.S. at 887-93
(Breyer, J., concurring)). Conversely, we also know Justice Breyer would require less
than intentional or purposeful targeting of the forum state's market. Id. at 179-80.
According to Justice Breyer, the constitutional floor for "something more" lies
somewhere in between those two rules.



                                           3
Noll v. Am. Biltrite, Inc., No. 91998-4 (Gonzalez, J., concurring)

aware of Certain-Teed's connection to Washington" and because "Noll did

not allege that Special was aware that Certain-Teed delivered any of its

pipes outside of California." Majority at 13. Consistent with its implicit

adoption of an awareness requirement, the majority criticizes the Court of

Appeals for finding personal jurisdiction despite the court's

"acknowledg[ment] that Special may not have been aware that Certain-Teed

was supplying the asbestos-cement pipes to companies in Washington." Id.

Because I do not interpret LG Electronics as adopting an awareness

requirement, I disagree with the majority's assertion that "[w]e accepted

review in this case ... because we disagree with the Court of Appeals'[s]

application of LG Electronics .... " Majority at 2.

       By focusing on the absence of awareness, the majority circumvents

any real analysis of whether Noll alleged "something more" sufficient to

satisfy J McIntyre and LG Electronics. Although Noll did not allege any

market dominance or national price fixing scheme comparable to that

alleged in LG Electronics, Noll did allege that Special Electric had a

nationwide sales presence in the United States as the exclusive sales agent

for two asbestos mining companies, "General Mining and Finance and [the]

Calaveras Asbestos Company." Clerk's Papers at 103. Noll claims this

nationwide agency relationship led to Special Electric's five-year contract



                                       4
Noll v. Am. Biltrite, Inc., No. 91998-4 (Gonzalez, J., concurring)

with Certain-Teed, which resulted in the sale of approximately 4,000 metric

tons of asbestos to Certain-Teed annually from 1977 through 1979 and the

delivery of at least 31 shipments totaling 55,000 linear feet of asbestos-

cement pipes into Washington. Clerk's Papers at 108, 328-30. And while

the majority is correct that Noll did not allege that Special Electric

specifically knew about those Washington shipments, he did allege that

Special Electric supplied over 90 percent of Certain-Teed's asbestos needs

in California and that asbestos-cement pipes were the only asbestos products

made there. Id. at 263-64. Thus, while the majority might be correct that

"[s]howing only that an out-of-state manufacturer sold a component part to

another out-of-state manufacturer who then sold the finished product into

Washington is not enough to confer specific personal jurisdiction in

Washington," majority at 14 (emphasis added), the sale of approximately

4,000 metric tons of asbestos annually for three years is undisputedly more

than the sale of a single component part, and the shipment of over 55,000

linear feet of asbestos-cement pipes into Washington is certainly more than a

single finished product. The question is whether that is enough to support an

exercise of personal jurisdiction in Washington.

      Noll should be given an opportunity to argue before the trial court that

the totality of the facts he alleged is sufficient to support personal



                                        5
Noll v. Am. Biltrite, Inc., No. 91998-4 (Gonzalez, J., concurring)

jurisdiction in Washington over Special Electric under LG Electronics.

Because the trial court misunderstood J. McIntyre as requiring "some kind

of proactive targeting; something that requires an effort and an intent," Noll

had to limit his factual arguments to that misunderstanding. Verbatim

Report of Proceedings (May 10, 2013) at 31. I would remand to the trial

court to consider whether specific personal jurisdiction exists in light of LG

Electronics.·




                                       6
Noll v. Am. Biltrite, Inc., No. 91998A (Gonzalez, J., concurring)




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