[Cite as Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452.]




 FRALEY, D.B.A. FRALEY TRUCKING, APPELLEE, v. ESTATE OF OEDING ET AL.,
                                       APPELLANTS.
   [Cite as Fraley v. Estate of Oeding, 138 Ohio St.3d 250, 2014-Ohio-452.]
Civil Procedure—Long-arm jurisdiction—Ohio court may not exercise personal
        jurisdiction over nonresident based solely on conduct of nonresident’s
        insurance company—Judgment reversed.
   (No. 2012-1994—Submitted October 9, 2013—Decided February 12, 2014.)
                APPEAL from the Court of Appeals for Butler County,
                        No. CA2011-09-0180, 2012-Ohio-4770.
                               ______________________
                               SYLLABUS OF THE COURT
An Ohio court may not exercise personal jurisdiction over a nonresident based
        solely on the conduct of the nonresident’s insurance company.
                               ______________________
        FRENCH, J.
        {¶ 1} In this appeal, we address whether Ohio courts may exercise in-
personam jurisdiction over a nonresident defendant based solely on the conduct of
the defendant’s insurer. We hold that they may not.
                             Facts and Procedural History
        {¶ 2} Appellee, David Fraley, d.b.a. Fraley Trucking, an Ohio resident,
filed this negligence action against appellants, the estate of Timothy J. Oeding,
J&R Equipment and Storing (“J&R”), and Auto-Owners Insurance Company
(“Auto-Owners”), in the Butler County Court of Common Pleas. Fraley’s action
arises out of a motor-vehicle accident that occurred in November 2008 in Indiana.
Fraley’s complaint identifies an Indiana address for each appellant, and service of
process was directed to appellants in Indiana.
                             SUPREME COURT OF OHIO




       {¶ 3} Fraley alleged that Timothy Oeding, while acting within the course
of his employment with J&R, negligently caused a collision between the motor
vehicle Oeding was operating and a truck owned by Fraley and operated by
Fraley’s employee, Craig Farler, who was also acting within the course of his
employment. Oeding died as a result of injuries sustained in the collision. Fraley
alleged that Auto-Owners, which insured J&R and Oeding, conducted an
independent investigation into the facts of the accident and, as part of its
investigation, placed an investigative hold on Fraley’s truck for approximately
five months.     Fraley claimed that Oeding’s negligence proximately caused
tangible property damage to Fraley’s truck and personal injury to Farler. Fraley
also claimed that Auto-Owners’ investigatory hold caused Fraley intangible
economic loss due to the loss of use of the truck. The parties’ filings indicate that
they settled Fraley’s claims for property damage and personal injury but were
unable to resolve Fraley’s loss-of-use claim, the sole claim left to be resolved.
       {¶ 4} Appellants moved the trial court to dismiss Fraley’s complaint for
lack of personal jurisdiction, pursuant to Civ.R. 12(B)(2). They argued that
Fraley’s allegations do not fall within the scope of Ohio’s long-arm statute or
Civ.R. 4.3(A) and that appellants do not have sufficient minimum contacts with
Ohio to justify the exercise of jurisdiction. Appellants also argued that Auto-
Owners’ provision of insurance coverage in several states, including Ohio, is
insufficient to permit Ohio’s exercise of personal jurisdiction over Auto-Owners
or its insureds given the circumstances of this case.
       {¶ 5} In response to appellants’ motion, Fraley submitted an affidavit in
which he restated relevant facts from the complaint and further stated that he
suffered economic loss in Ohio due to Auto-Owners’ investigative hold. Fraley’s
affidavit additionally stated that Auto-Owners directed correspondence and calls
to Fraley and his counsel in Ohio to resolve Fraley’s claims and that Auto-Owners
is licensed to transact business in Ohio. In his memorandum opposing dismissal,



                                          2
                               January Term, 2014




Fraley did not argue that Oeding or J&R had any personal contacts with Ohio, but
argued that personal jurisdiction exists over all appellants because Auto-Owners
transacted business in Ohio and caused tortious injury to Fraley in Ohio while
acting as an agent of J&R and Oeding.
       {¶ 6} The trial court granted appellants’ motion to dismiss. The court
held that it could not exercise personal jurisdiction over Oeding and J&R solely
because their insurer did business in Ohio and further held that Fraley was not
entitled to maintain a direct action against Auto-Owners, because he had not
obtained a judgment against Auto-Owners’ insureds.
       {¶ 7} On appeal, Fraley conceded that Ohio law precludes him from
bringing a direct action against Auto-Owners, but he argued that the trial court
erred in determining that it lacked personal jurisdiction over Oeding and J&R.
The Twelfth District Court of Appeals agreed and reversed the trial court’s
judgment. 2012-Ohio-4770, 981 N.E.2d 911 (12th Dist.).
       {¶ 8} The court of appeals recognized that the record contains no
indication that Oeding or J&R had any contact with Ohio and that Fraley’s
jurisdictional argument could prevail only if Auto-Owners’ activities are imputed
to J&R and Oeding. Id. at ¶ 9. The court of appeals acknowledged instances in
which this court has imputed an insurer’s action or inaction to its insured, see,
e.g., Griffey v. Rajan, 33 Ohio St.3d 75, 77-78, 514 N.E.2d 1122 (1987), but it
recognized that the question whether an insurer’s actions can be imputed to a
nonresident insured for purposes of obtaining personal jurisdiction over the
insured is one of first impression in this state. Id. at ¶ 9-13. The court answered
that question in the affirmative and held that Auto-Owners’ investigatory hold and
its correspondence and calls to Fraley and his attorney brought Auto-Owners, and
by extension J&R and Oeding, within Ohio’s long-arm statute. Id. at ¶ 19. The
court also held that Ohio’s exercise of jurisdiction over appellants would not
contravene principles of due process. Id. at ¶ 23-24.




                                         3
                             SUPREME COURT OF OHIO




       {¶ 9} This court accepted appellants’ discretionary appeal. 134 Ohio
St.3d 1484, 2013-Ohio-902, 984 N.E.2d 28.
                                Question Presented
       {¶ 10} We are asked to determine whether an Ohio court may impute an
insurance company’s conduct to its nonresident insured for purposes of
establishing personal jurisdiction over the insured. We hold that it may not. An
Ohio court may not exercise personal jurisdiction over a nonresident based solely
on the conduct of the nonresident’s insurance company.
                                     Analysis
       {¶ 11} Appellants’ motion to dismiss placed upon Fraley the burden to
show that the trial court had personal jurisdiction over appellants. Kauffman
Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 2010-Ohio-2551, 930
N.E.2d 784, ¶ 27, citing Fallang v. Hickey, 40 Ohio St.3d 106, 107, 532 N.E.2d
117 (1988). When, as here, a trial court determines a Civ.R. 12(B)(2) motion to
dismiss without an evidentiary hearing, the plaintiff need only make a prima facie
showing of jurisdiction. Id. In resolving the motion, the trial court must view the
allegations in the pleadings and the evidence in the light most favorable to the
plaintiff and make all reasonable inferences in the plaintiff’s favor. Id., citing
Goldstein v. Christiansen, 70 Ohio St.3d 232, 236, 638 N.E.2d 541 (1994).
Personal jurisdiction is a question of law that appellate courts review de novo. Id.
       {¶ 12} The determination whether an Ohio court has personal jurisdiction
over an out-of-state defendant requires a two-step inquiry. First, the court must
determine whether the defendant’s conduct falls within Ohio’s long-arm statute or
the applicable civil rule. Kentucky Oaks Mall Co. v. Mitchell’s Formal Wear,
Inc., 53 Ohio St.3d 73, 75, 559 N.E.2d 477 (1990). If it does, then the court must
consider whether the assertion of jurisdiction over the nonresident defendant
would deprive the defendant of due process of law under the Fourteenth
Amendment to the United States Constitution. Id.



                                         4
                                     January Term, 2014




        {¶ 13} We begin with the question whether appellants’ conduct falls
within Ohio’s long-arm statute or Civ.R. 4.3(A). Ohio’s long-arm statute, R.C.
2307.382, enumerates specific conduct that gives rise to personal jurisdiction. It
provides as follows:


                 (A)     A court may exercise personal jurisdiction over a
        person who acts directly or by an agent, as to a cause of action
        arising from the person’s:
                 (1) Transacting any business in this state;
                 ***
                 (4)    Causing tortious injury in this state by an act or
        omission outside this state if he regularly does or solicits business,
        or engages in any other persistent course of conduct, or derives
        substantial revenue from goods used or consumed or services
        rendered in this state.


For purposes of R.C. 2307.382, “person” includes “an individual, his executor,
administrator, or other personal representative, or a corporation, partnership,
association, or any other legal or commercial entity, who is a nonresident of this
state.” R.C. 2307.381.
        {¶ 14} Civ.R. 4.3(A)(1) and (4) mirror R.C. 2307.382(A)(1) and (4)
respectively, regarding service of process on persons outside the state of Ohio.
Civ.R. 4.3(A) defines “person” in terms nearly identical to R.C. 2307.381.1
        {¶ 15} Because Fraley concedes that he is not entitled to maintain a direct
action against Auto-Owners, we consider only whether the trial court had personal


1. “ ‘Person’ includes an individual, an individual’s executor, administrator, or other personal
representative, or a corporation, partnership, association, or any other legal or commercial entity
* * *.” Civ.R. 4.3(A).




                                                5
                             SUPREME COURT OF OHIO




jurisdiction over J&R and Oeding. The court of appeals characterized Auto-
Owners as J&R and Oeding’s agent, concluded that Auto-Owners’ actions fell
within R.C. 2307.382(A)(4), and held that Auto-Owners’ actions may be imputed
to Oeding and J&R. 2012-Ohio-4770, 981 N.E.2d 911, at ¶ 18-19. The court of
appeals expressly recognized that “there is no indication that J&R or Oeding
themselves had any contact with Ohio” but nevertheless held that “by virtue of the
actions of Auto-Owners, J&R and Oeding are also within the purview of Ohio’s
long-arm statute.” Id. at ¶ 9, 19. The court of appeals’ determination is contrary
to the plain language of the long-arm statute.
       {¶ 16} Our paramount concern in construing a statute is legislative intent.
State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815
N.E.2d 1107, ¶ 21. To discern legislative intent, “we first consider the statutory
language, reading words and phrases in context and construing them in
accordance with rules of grammar and common usage.” State ex rel. Choices for
South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840
N.E.2d 582, ¶ 40. When statutory language is unambiguous, a court must apply it
as written. Zumwalde v. Madeira & Indian Hill Joint Fire Dist., 128 Ohio St.3d
492, 2011-Ohio-1603, 946 N.E.2d 748, ¶ 23.
       {¶ 17} Under R.C. 2307.382(A)(4), an Ohio court “may exercise personal
jurisdiction over a person who acts directly or by an agent, as to a cause of action
arising from the person’s * * * [c]ausing tortious injury in this state by an act or
omission outside this state if he regularly does or solicits business, or engages in
any other persistent course of conduct * * * in this state.” (Emphasis added.) The
“persons” over whom Fraley asks the court to exercise jurisdiction are J&R and
Oeding.
       {¶ 18} To be subject to personal jurisdiction under R.C. 2307.382(A)(4), a
person must cause tortious injury in Ohio by an act or omission, either directly or
by an agent, outside of Ohio. The alleged injury here is Fraley’s loss of the use of



                                         6
                                January Term, 2014




his truck, and the act allegedly causing that injury is Auto-Owners’ investigative
hold. Fraley maintains that Auto-Owners acted as the agent of J&R and Oeding
when it held Fraley’s truck in Indiana and that Auto-Owners’ act is therefore
imputed to its insureds. We will address Fraley’s agency argument in more detail
below, but we first conclude that more is statutorily required before J&R and
Oeding are subject to personal jurisdiction under R.C. 2307.382(A)(4).
       {¶ 19} R.C. 2307.382 requires that the person over whom jurisdiction is
asserted regularly does or solicits business or engages in another persistent course
of conduct in Ohio. Although it is undisputed that neither J&R nor Oeding has
engaged in any conduct in Ohio, Fraley nevertheless maintains that Auto-Owners’
business or activity in Ohio is imputed to its insureds and satisfies the remaining
statutory requirement for jurisdiction over J&R and Oeding.
       {¶ 20} Under R.C. 2307.382(A)(4), a person may act, either directly or by
an agent, to cause tortious injury, but use of the term “agent” does not indicate a
legislative intent to incorporate an agent into the definition of “person.” Indeed,
were an agent incorporated within the definition of “person,” the General
Assembly would not have needed to specify that a person may act, either directly
or by an agent. As a result of that specification, an agent is necessarily distinct
from the person for whom the agent acts.         R.C. 2307.382(A)(4) defines the
subject of jurisdiction as “a person who acts * * * as to a cause of action arising
from the person’s * * * causing tortious injury * * * if he regularly does or
solicits business, or engages in any other persistent course of conduct * * * in this
state.” (Emphasis added.) Although a person may act via an agent to cause harm,
the person (and not his or her agent) must have done or solicited business or
engaged in a persistent course of conduct in Ohio before being subjected to the
jurisdiction of Ohio’s courts. The word “he” in R.C. 2307.382(A)(4) relates to
the “person”—J&R and Oeding in this case—and not to the person’s agent. As




                                         7
                             SUPREME COURT OF OHIO




neither J&R nor Oeding conducted business in Ohio, R.C. 2307.382(A)(4) does
not subject them to personal jurisdiction.
        {¶ 21} Fraley also argues that the R.C. 2307.381 definition of “person”
includes a personal representative and that Auto-Owners qualifies as a personal
representative of its insureds. Fraley maintains that R.C. 2307.381 indicates a
legislative intent for maximum reach over nonresident defendants. R.C. 2307.381
defines “person” to include an individual’s “executor, administrator, or other
personal representative,” but R.C. Chapter 2307 does not define those terms.
Although the definition in R.C. 2307.381 applies to R.C. 2307.382, Fraley’s
suggestion that Auto-Owners acted as its insureds’ personal representative is
misplaced.
        {¶ 22} We must accord undefined statutory terms their plain and ordinary
meaning. Am. Fiber Sys., Inc. v. Levin, 125 Ohio St.3d 374, 2010-Ohio-1468,
928 N.E.2d 695, ¶ 24.       Black’s Law Dictionary 651 (9th Ed.2009) defines
“executor” as follows: “1. * * * One who performs or carries out some act.
2. * * * A person named by a testator to carry out the provisions in the testator’s
will.   Cf. ADMINISTRATOR (2).”              As relevant to one who acts in a
representative capacity, Black’s defines “administrator” as “2.           A person
appointed by the court to manage the assets and liabilities of an intestate decedent.
* * * Cf. EXECUTOR (2).” Id. at 52. Review of those definitions reveals that
the terms executor and administrator are related.
        {¶ 23} When, as in R.C. 2307.381, a statute contains a list of specific
terms followed by a catchall term linked to the specific terms by the word “other,”
we consider the catchall term as embracing only things of a similar character as
those comprehended by the preceding terms. Moulton Gas Serv., Inc. v. Zaino, 97
Ohio St.3d 48, 2002-Ohio-5309, 776 N.E.2d 72, ¶ 14; State v. Aspell, 10 Ohio
St.2d 1, 225 N.E.2d 226 (1967), paragraph two of the syllabus. Applying that rule
here, “other personal representative” in R.C. 2307.381 embraces relationships of a



                                         8
                               January Term, 2014




similar character as that of an executor or administrator, but it does not extend to
the mere contractual relationship between an insurer and its insured.           See
Nationwide Mut. Ins. Co. v. Marsh, 15 Ohio St.3d 107, 109, 472 N.E.2d 1061
(1984) (noting the “long-standing principle of law” that the relationship between
an insurer and its insured is purely contractual in nature). This understanding of
“personal representative” is consistent with the definition of that term in Black’s
Law Dictionary as “[a] person who manages the legal affairs of another because
of incapacity or death, such as the executor of an estate.” Id. at 1416-1417. Auto-
Owners did not act as J&R and Oeding’s personal representative.
       {¶ 24} Rather than focusing on the specific statutory language, the court
of appeals looked to prior opinions in which this court has approved imputing an
insurer’s conduct to its insured. See Griffey, 33 Ohio St.3d at 78, 514 N.E.2d
1122 (“for purposes of a Civ.R. 60(B)(1) motion for relief from a default
judgment on the grounds of excusable neglect, the neglect of a defendant’s
insurance company in failing to file an answer or other responsive pleading to a
complaint against defendant is imputable to the defendant”); Peyko v. Frederick,
25 Ohio St.3d 164, 166-167, 495 N.E.2d 918 (1986) (holding that a plaintiff may
access the unprivileged portions of the claim file of a defendant’s insurer for
purposes of a motion for prejudgment interest because the “defendant’s insurer
conducts the pretrial negotiations and litigation and approves any offers of
settlement—all in the defendant’s name and for the defendant’s benefit”
[emphasis sic]). In Griffey, we noted a “wealth of authority from outside Ohio
supporting the imputation of an insurance company’s neglect in defending a
lawsuit to its insured.” Id. at 78. Importantly, however, neither Griffey nor Peyko
involved a question of personal jurisdiction, with its attendant due-process
concerns. In both of those cases, the Ohio courts unquestionably had personal
jurisdiction over the insured defendants. We are aware of no Ohio case, other
than the court of appeals’ decision here, in which a court has imputed an insurer’s




                                         9
                                SUPREME COURT OF OHIO




conduct to its insured for purposes of determining whether the insured was subject
to personal jurisdiction in Ohio, and we do not view Griffey or Peyko as requiring
or supporting that result.
       {¶ 25} Even if an agent’s doing business in Ohio could satisfy R.C.
2307.382(A)(4), Auto-Owners did not act as its insureds’ agent when it instituted
an investigatory hold on Fraley’s truck. We agree with the reasoning of the court
in Kirchen v. Orth, 390 F.Supp. 313 (E.D.Wis.1975), which addressed a
jurisdictional argument similar to Fraley’s. Kirchen involved the application of
Wisconsin’s long-arm statute, which permitted the exercise of personal
jurisdiction “ ‘[i]n any action whether arising within or without this state, against
a defendant who when the action is commenced * * * [i]s engaged in substantial
and not isolated activities within this state.’ ”      Id. at 316, quoting former
Wis.Stat.Ann. 262.05(1)(d), now Wis.Stat.Ann. 801.05(1)(d).
       {¶ 26} The plaintiffs in Kirchen, who were Wisconsin residents, initiated
suit in a Wisconsin federal district court.     They argued that the nonresident
defendant-driver engaged in substantial activities in Wisconsin by way of
settlement negotiations between his insurance company and the plaintiffs, that the
insurance company was acting as the driver’s agent, and that the insurance
company’s activities were attributable to the driver for purposes of determining
jurisdiction. Id. at 315-316.
       {¶ 27} The Kirchen court rejected the plaintiffs’ agency theory. It noted
that an agency relationship requires the purported principal to have the right of
control over the purported agent’s actions. Id. at 317, citing 2A Corpus Juris
Secundum, Agency, Section 6, at 561 (1972). Accord Hanson v. Kynast, 24 Ohio
St.3d 171, 494 N.E.2d 1091 (1986), paragraph one of the syllabus (“The
relationship of principal and agent * * * exists only when one party exercises the
right of control over the actions of another, and those actions are directed toward
the attainment of an objective which the former seeks”). The Kirchen court



                                         10
                                January Term, 2014




reasoned that liability-insurance policies reserve to the insurer the right to defend,
investigate, negotiate, and settle any claim against the insured as the insurer
deems expedient, and that the insured has no right to control the method, means,
or place of settlement negotiations. Id. at 317. The court also noted that while an
insurance company may act on its insured’s behalf in negotiating and settling
claims, the insurer acts “in a dual capacity, the principal purpose of which is to
protect its own contingent liability under the contract.”         Id.   Under these
circumstances, the court refused to find an agency relationship between the
insurer and the insured.
       {¶ 28} The insurance policy issued to J&R is not part of the record, but
Fraley has never argued, and there is nothing in the record to suggest, that J&R
and/or Oeding had any control over Auto-Owners’ actions, including its
investigative hold on Fraley’s truck or its negotiations to settle Fraley’s claims.
There is simply no prima facie showing that Auto-Owners acted as its insureds’
agent in this case for purposes of R.C. 2307.382(A)(4). For these reasons, we
conclude that Auto-Owners’ actions cannot suffice to subject J&R or Oeding to
personal jurisdiction under Ohio’s long-arm statute.
       {¶ 29} In addition to concluding that Ohio may not exercise personal
jurisdiction over J&R and Oeding under its long-arm statute, we further conclude
that exercise of personal jurisdiction in this case would violate established
principles of due process. Because Ohio’s long-arm statute is not coterminous
with due process, Goldstein, 70 Ohio St.3d at 238, 638 N.E.3d 541, fn. 1, even
satisfaction of the long-arm statute does not justify the exercise of jurisdiction
unless that exercise also comports with the defendant’s constitutional right to due
process. Kauffman Racing Equip., 126 Ohio St.3d 81, 2010-Ohio-2551, 930
N.E.2d 784, at ¶ 45. Here, it would not.
       {¶ 30} We must evaluate all assertions of state-court jurisdiction
according to the due-process standards set out in Internatl. Shoe Co. v.




                                           11
                             SUPREME COURT OF OHIO




Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny.
Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). A
state may exercise jurisdiction over an out-of-state defendant only if the defendant
has “certain minimum contacts with [the forum] such that the maintenance of the
suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
Internatl. Shoe at 316, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct.
339, 85 L.Ed. 278 (1940).       The concept of minimum contacts protects the
nonresident defendant from the burdens of litigating in distant or inconvenient
forums and ensures that states do not encroach upon each other’s sovereign
interests. U.S. Sprint Communications Co. Ltd. Partnership v. Mr. K’s Foods,
Inc., 68 Ohio St.3d 181, 186, 624 N.E.2d 1048 (1994), citing World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490
(1980).
          {¶ 31} To satisfy the minimum-contacts requirement, “it is essential in
each case that there be some act by which the defendant purposefully avails itself
of the privilege of conducting activities within the forum State, thus invoking the
benefits and protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253, 78
S.Ct. 1228, 2 L.Ed.2d 1283 (1958). A determination whether a court’s exercise of
jurisdiction is consistent with due process must focus on “the relationship among
the defendant, the forum, and the litigation.” Shaffer at 204. A court must assess
each defendant’s contacts with the forum state individually. Calder v. Jones, 465
U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), citing Rush v. Savchuk,
444 U.S. 320, 332, 100 S.Ct. 571, 62 L.Ed.2d 516 (1980).
          {¶ 32} The only alleged connections in this case between appellants and
the state of Ohio are Auto-Owners’ registration with the Ohio Department of
Insurance and its telephone and written correspondence with Fraley and his
attorney in Ohio. Fraley maintains that those connections demonstrate sufficient
minimum contacts for the trial court to exercise personal jurisdiction over all three



                                         12
                               January Term, 2014




appellants. Appellants, on the other hand, argue that the imputation of Auto-
Owners’ conduct to J&R and Oeding for purposes of determining their
amenability to personal jurisdiction violates traditional notions of fair play and
substantial justice.
        {¶ 33} Subjecting an insured to personal jurisdiction wherever its insurer
chooses to conduct settlement negotiations is offensive to due process. Kirchen,
390 F.Supp. at 317. When a defendant has engaged in no purposeful and willful
conduct with the forum state and has no control over his insurer’s settlement
activity in that state, the defendant “cannot be said to have willfully associated
himself with the state nor purposefully invoked the benefit and protections of its
laws.” Id.
        {¶ 34} The United States Supreme Court addressed due-process concerns
raised by the exercise of personal jurisdiction over a nonresident defendant based
on the conduct of the defendant’s insurer in Rush, 444 U.S. 320, 100 S.Ct. 571, 62
L.Ed.2d 516. Rush arose out of a single-vehicle accident in Indiana. At the time
of the accident, the driver, Randal Rush, and the injured passenger, Jeffrey
Savchuk, were Indiana residents, and the vehicle driven by Rush was insured
under a liability policy issued by State Farm Mutual Automobile Insurance
Company in Indiana.      Savchuk subsequently moved to Minnesota, where he
commenced an action against Rush and State Farm.            Although State Farm
conducted business in Minnesota, Rush had no personal contacts with that state.
Id. at 322.
        {¶ 35} Savchuk attempted to invoke the Minnesota court’s quasi-in-rem
jurisdiction by garnishing State Farm’s policy obligation to defend and indemnify
Rush. Id. at 323. The Minnesota Supreme Court upheld the trial court’s denial of
the defendants’ motions to dismiss and held that fairness supported the exercise of
quasi-in-rem jurisdiction “because in accident litigation the insurer controls the
defense of the case, State Farm does business in and is regulated by [Minnesota],




                                        13
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and [Minnesota] has an interest in protecting its residents and providing them with
a forum in which to litigate their claims.” Id. at 324, citing Savchuk v. Rush, 311
Minn. 480, 245 N.W.2d 624 (1976) (“Savchuk I”). As summarized in the United
States Supreme Court’s opinion, the Minnesota Supreme Court “recognized that
Rush had engaged in no voluntary activity that would justify the exercise of in
personam jurisdiction” but held that the assertion of quasi-in-rem jurisdiction
through garnishment of State Farm’s obligation to Rush complied with due
process. Id. at 324-325; see Savchuk v. Rush, 272 N.W.2d 888 (Minn.1978)
(“Savchuk II”).
       {¶ 36} The United States Supreme Court rejected Savchuk’s “ingenious
jurisdictional theory,” holding that the fictitious presence in Minnesota of State
Farm’s obligation to defend and indemnify Rush “does not, without more, provide
a basis for concluding that there is any contact in the International Shoe sense”
between Minnesota and Rush. (Emphasis sic.) Id. at 328-330. “[I]t cannot be
said that the defendant engaged in any purposeful activity related to the forum
that would make the exercise of jurisdiction fair, just, or reasonable * * * merely
because his insurer does business there.” (Emphasis sic.) Id. at 329.
       {¶ 37} The Supreme Court also rejected as “plainly unconstitutional” the
Minnesota court’s aggregation of State Farm’s and Rush’s forum contacts in a
situation in which the resulting assertion of jurisdiction over Rush was based
solely on State Farm’s activities: “The requirements of International Shoe * * *
must be met as to each defendant over whom a state court exercises jurisdiction.”
Id. at 332. Despite State Farm’s conducting of business in Minnesota and its
attempts to settle Savchuk’s claims there, the court held that Rush “has no
contacts with the forum, and the Due Process Clause ‘does not contemplate that a
state may make binding a judgment * * * against an individual or corporate
defendant with which the state has no contacts, ties, or relations.’ ” (Emphasis
sic.) Id. at 332-333, quoting Internatl. Shoe, 326 U.S. at 319, 66 S.Ct. 154, 90



                                        14
                               January Term, 2014




L.Ed 95.     See also Shoemaker v. McConnell, 556 F.Supp.2d 351, 355
(D.Del.2008) (holding that the exercise of jurisdiction over a defendant based
solely on the actions of the defendant’s insurer in the forum state would not
comport with due process).
        {¶ 38} The same rationale applies here. The requirements of Internatl.
Shoe, which must be met as to each defendant, have not been met with respect to
J&R or Oeding. It cannot be said that either J&R or Oeding engaged in any
purposeful activity related to the state of Ohio that would make the exercise of
jurisdiction fair, just, or reasonable merely because their insurer did business in
Ohio. Simply put, neither J&R nor Oeding have any contacts with the state of
Ohio, and the exercise of jurisdiction over those appellants would violate due
process.
        {¶ 39} The court of appeals here stated that “in some instances, minimum
contacts can be established regarding the insured solely by the actions of the
insurer negotiating on his behalf in the forum state.”      2012-Ohio-4770, 981
N.E.2d 911, at ¶ 22, citing Univ. of S. Alabama v. S. Farm Bur. Cas. Ins. Co.,
S.D.Ala. No. CA 05-00275-C, 2005 WL 1840238 (July 27, 2005). Univ. of S.
Alabama, however, is not only distinguishable but is also inconsistent with the
reasoning of Rush, 444 U.S. 320, 100 S.Ct. 571, 62 L.Ed.2d 516, as pertinent to
this case.
        {¶ 40} Univ. of S. Alabama involved a Mississippi automobile accident
between Roosevelt Jackson and Virginia Hamilton, both of whom were
Mississippi residents. As a result of the accident, Jackson received medical care
from an Alabama hospital, which filed a notice of hospital lien in Alabama.
Despite knowledge of the hospital lien, Jackson, Hamilton, and Hamilton’s
insurer, Mississippi Farm Bureau, settled Jackson’s claims without providing for
payment of the lien, and Jackson executed a release of all claims against Hamilton




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and Mississippi Farm Bureau in exchange for $25,000, paid by Mississippi Farm
Bureau. 2005 WL 1840238 at *1-2.
       {¶ 41} The hospital sued Mississippi Farm Bureau, Jackson, and Hamilton
in the United States District Court for the Southern District of Alabama for
impairment of its lien, and Mississippi Farm Bureau and Hamilton moved the
court to dismiss for lack of personal jurisdiction. Id. at *3. The district court held
that Mississippi Farm Bureau was subject to the court’s specific jurisdiction
because the plaintiff’s claim—a direct claim against Mississippi Farm Bureau—
arose from the insurer’s contacts with Alabama. Id. at *8.           The court also
concluded that in light of deposition testimony that Mississippi Farm Bureau
acted as Hamilton’s agent during settlement negotiations, it could exercise
specific personal jurisdiction over Hamilton. Id., fn. 7.
       {¶ 42} In contrast to the plaintiff in Univ. of S. Alabama, Fraley has
conceded that he does not have a direct claim against Auto-Owners. Further,
Fraley’s claim does not arise directly from Auto-Owners’ conduct in Ohio.
Rather, Fraley relies upon Auto-Owners’ sporadic and nebulous contacts with
Ohio to establish jurisdiction over Auto-Owners’ insureds precisely because he
cannot seek recovery directly against Auto-Owners itself. We have additionally
determined that Auto-Owners did not act as its insureds’ agent with respect to the
conduct underlying Fraley’s claim.            This case, therefore, is factually
distinguishable from Univ. of S. Alabama. Moreover, in light of the United States
Supreme Court’s holding in Rush, 444 U.S. at 332-333, 100 S.Ct. 571, 62 L.Ed.2d
516—that due process does not permit the exercise of personal jurisdiction over a
nonresident defendant who has no contacts with the forum, despite the fact that
the defendant’s insurance company conducts business in the forum—Univ. of S.
Alabama does not persuade us that Fraley is entitled to maintain a claim against
appellants in Ohio.




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                               January Term, 2014




                                   Conclusion
       {¶ 43} An Ohio court may not exercise personal jurisdiction over a
nonresident based solely on the conduct of the nonresident’s insurance company.
The assertion of personal jurisdiction over J&R and Oeding, based solely on the
conduct of their insurer, is inconsistent with both Ohio’s long-arm statute and
principles of due process. Neither J&R nor Oeding has any contact with the state
of Ohio, and fundamental fairness precludes Ohio from subjecting appellants to
the burdens of litigating and the possibility of binding judgments in this state
merely because their insurance company engages in business here. Accordingly,
we reverse the judgment of the Twelfth District Court of Appeals and reinstate the
judgment of the trial court.
                                                               Judgment reversed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, and KENNEDY, JJ., concur.
       PFEIFER and O’NEILL, JJ., dissent.
                               __________________
       PFEIFER, J., dissenting.
       {¶ 44} Does Ohio law shield an insurance company that transacts business
in this state from having to be subject to suit in an Ohio court when it engages in
tortious activity that does harm to Ohioans? I would hold that Ohio’s long-arm
statute is broad enough to confer jurisdiction over a defendant whose Ohio-
licensed insurer commits tortious acts against Ohio citizens and that exercising
jurisdiction over the insured defendants in this case would not raise significant
due-process concerns.
       {¶ 45} The only claim remaining in the lawsuit at issue concerns solely
the activity of Auto-Owners Insurance Company (“Auto-Owners”), specifically
its alleged retention of plaintiff-appellee David Fraley’s tractor-trailer for an
unreasonable length of time.      The parties seem to agree that R.C. 3929.06




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prevents a direct action by Fraley against Auto-Owners; I am not sure that I share
that view, but that issue is not alive in this case and is a matter for another day.
       {¶ 46} We are left with a case that revolves around the actions of Auto-
Owners only but that can be resolved only through a claim against the insureds. I
agree with the appellate court below that just as the actions of an insurer can be
imputed to the insured for purposes of liability, personal jurisdiction may also be
imputed from the insurer to the insured. If direct actions against insurers are
indeed forbidden by law, J&R Equipment and Storing and the Oeding estate are
defendants here in name only. That legal fiction should not obscure who the true,
sole defendant is in this case.
       {¶ 47} If it were an available defendant through a direct action, Auto-
Owners would be subject to long-arm jurisdiction under R.C. 2307.382(A). Auto-
Owners fits the definition of “person” under R.C. 2307.381 and meets the rest of
the requirements of R.C. 2307.382:


               (A) A court may exercise personal jurisdiction over a
       person who acts directly or by an agent, as to a cause of action
       arising from the person’s:
               ***
               (4) Causing tortious injury in this state by an act or
       omission outside this state if he regularly does or solicits business,
       or engages in any other persistent course of conduct, or derives
       substantial revenue from goods used or consumed or services
       rendered in this state.


       {¶ 48} Auto-Owners allegedly caused injury to Fraley in Fraley’s home
base of Ohio through wrongfully withholding the use of Fraley’s truck; the
existence of Auto-Owners’ insurance license from the Ohio Department of



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                                   January Term, 2014




Insurance authorizing it to transact business in this state satisfies the “regularly
does or solicits business” portion of the long-arm statute.
           {¶ 49} To properly determine personal jurisdiction, we must also consider
“whether the exercise of jurisdiction would deprive the nonresident defendant of
the right to due process of law under the Fourteenth Amendment to the United
States Constitution.” Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d
81, 2010-Ohio-2551, 930 N.E.2d 784, ¶ 28.


           [D]ue process is satisfied if the defendant has “minimum contacts”
           with the forum state such that the maintenance of the suit does not
           offend “ ‘traditional notions of fair play and substantial justice.’ ”
           [Internatl. Shoe Co. v. Washington] (1945), 326 U.S. 310, 316, 66
           S.Ct. 154, 90 L.Ed. 95, quoting Milliken v. Meyer (1940), 311 U.S.
           457, 463, 61 S.Ct. 339, 85 L.Ed. 278.


Id. at ¶ 45.
           {¶ 50} I would hold that Auto-Owners’ license to do business in Ohio is
sufficient to establish minimum contacts as to both Auto-Owners and its insureds.
In Kentucky Oaks Mall Co. v. Mitchell's Formal Wear, Inc., 53 Ohio St.3d 73,
559 N.E.2d 477 (1990), this court set forth factors to consider in determining
whether the exercise of jurisdiction comports with fair play and substantial
justice:


                  “Once it has been decided that a defendant purposefully
           established minimum contacts within the forum State, these
           contacts may be considered in light of other factors to determine
           whether the assertion of personal jurisdiction would comport with
           ‘fair play and substantial justice.’ * * * Thus courts in ‘appropriate




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                             SUPREME COURT OF OHIO




       cases[s]’ may evaluate ‘the burden on the defendant,’ ‘the forum
       State’s interest in adjudicating the dispute,’ ‘the plaintiff’s interest
       in obtaining convenient and effective relief,’ ‘the interstate judicial
       system’s interest in obtaining the most efficient resolution of
       controversies,’ and the ‘shared interest of the several States in
       furthering fundamental substantive social policies.’ * * * These
       considerations sometimes serve to establish the reasonableness of
       jurisdiction upon a lesser showing of minimum contacts than
       would otherwise be required. * * * On the other hand, where a
       defendant who purposefully has directed his activities at forum
       residents seeks to defeat jurisdiction, he must present a compelling
       case that the presence of some other considerations would render
       jurisdiction unreasonable.”      (Citations omitted and emphasis
       added.)


(Emphasis sic.) Id. at 77, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476-477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
       {¶ 51} I would find that the burden on Auto-Owners and its insureds in
this particular case is minimal. Auto-Owners would not rely on the testimony of
anyone involved in the underlying accident; any witnesses would be people under
its control, either employees or contractors. This state has great interest in seeing
one of its citizens obtain relief for the alleged tortious acts of an insurer licensed
to do business in this state. The plaintiff, already hampered by being without an
important piece of business equipment for an inordinate period, has great interest
in obtaining timely, convenient, and effective relief. Because litigation of the
plaintiff’s claim would not require the presence of the named Indiana-resident
insureds, a lawsuit in Ohio against a corporation that does business in Ohio would
efficiently resolve the controversy. Allowing the case to be heard in Ohio would



                                         20
                               January Term, 2014




also be a nod to the practical realities of how insurance litigation is conducted in
Ohio and adjoining states. Exercising jurisdiction over the insureds in this case
would not upset traditional notions of fair play and substantial justice in cases
involving insurance companies—this is the rare case in which there is only a
single extant claim, which happens to involve only the insurer’s wrongful activity.
       {¶ 52} Accordingly, I would affirm the judgment of the court of appeals.
       O’NEILL, J., concurs in the foregoing opinion.
                              __________________
       Repper, Pagan, Cook, Ltd., and Christopher J. Pagan, for appellee.
       Smith, Rolfes & Skavdahl Co., L.P.A., and James P. Nolan II, for
appellants.
       Green & Green, Lawyers, and Erin B. Moore, urging reversal for amicus
curiae, Ohio Association of Civil Trial Attorneys.
                          _________________________




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