On June 12, 2023, Division I of the Washington State Court of Appeals published its latest opinion (“Oltman”) on the recurring litigation issue of personal jurisdiction over a non-Washington resident. In Oltman v. Alaska,1 Division I affirmed Superior Court Judge Douglass North’s decision that the Superior Court had personal jurisdiction over Defendant Peninsula Aviation Services, Inc. (“PenAir”). PenAir is a small local carrier that services flights from Anchorage to other points in Alaska, including Dutch Harbor. PenAir is a Delaware corporation with its primary place of business in Alaska.
The airport in Dutch Harbor can be a challenging place to land. On October 17, 2019, a plane operated by PenAir, under an Alaska Airline flight number, attempted to land in Dutch Harbor with a significant tailwind. Unable to stop the plane on time, the PenAir pilot crashed into the ballast rocks at the edge of the harbor, coming to rest with the plane’s nose projecting over the harbor. When the plane overshot the end of the runway, the left propeller struck the ballast rocks splintering and showering broken pieces of propeller, as well as pieces of the fuselage into the plane’s interior. David Oltman was killed by the shrapnel, leaving behind a wife and two young children. Oltman’s surviving wife, his children, and the estate brought a lawsuit relating to his unfortunate death. Defending aggressively, PenAir and Alaska Airlines argued the Superior Court in Washington lacked personal jurisdiction over PenAir.
The parties engaged in significant procedural wrangling, not discussed in detail here. PenAir brought a 12(b)(2) motion to dismiss for lack of personal jurisdiction. After considerable briefing and argument, Judge North rejected PenAir’s motion to dismiss as well as a follow-on motion to reconsider. Interestingly, another superior court judge had reached a different result when confronting the issue earlier in the case. PenAir filed a request for discretionary review, which Division I granted.
After extensive briefing as well as oral argument, Division I issued its latest personal jurisdiction decision, affirming Judge North’s order that the King County Superior Court had personal jurisdiction over PenAir. In arguing the issue, PenAir emphasized it had no employees and facilities in Washington and conducted no specific marketing activities in Washington.2 Moreover, PenAir argued, its sole involvement in David Oltman’s three-legged flight — Wenatchee to Seattle to Anchorage to Dutch Harbor — was to fly the last two legs, from Seattle to Anchorage, and Anchorage to Dutch Harbor, which was insufficient to avail itself of the superior court.3
In opposition, Plaintiff Oltman argued PenAir had signed a Capacity Purchase Agreement (“CPA”), granting Alaska Air the right to sell its tickets in Washington, and the CPA specifically contained a choice-of-law provision by which the parties agreed any construction or enforcement of the CPA would be expressly governed by Washington law, arguably reflecting a willingness by PenAir to be bound by Washington law.4
The strong-arm issue, however, came when plaintiffs’ counsel recognized and suggested Washington’s Long Arm Statute explicitly allows the activities of an agent within the State of Washington to count towards personal jurisdiction over the foreign defendant, here PenAir.5 In fact, the appellate panel voiced some frustration with PenAir, which kept insisting parrot-like that PenAir had no employees or facilities in Washington and that PenAir conducted no activities therein. And yet PenAir never effectively addressed the incontestable fact that it had designated Alaska Air as its agent for sales of airline tickets in Washington and that the agent had considerable facilities and employees in Washington and conducted a substantial amount of marketing in the state.6
Washington’s Long Arm Statute explicitly allows minimum contacts with Washington to be established “through the acts of an agent.” Alaska Air’s substantial activities in Washington could be imputed to PenAir for personal jurisdiction purposes. Division I’s long-arm analysis thus stands on a secure footing and in no way “over reaches.”
Indeed, the facts surrounding Alaska Air’s activities are quite compelling in this case. Alaska was authorized to sell not just some of PenAir’s tickets for any “Alaskan legs,” but all of PenAir’s tickets. As far as PenAir was concerned, it was happy if every single PenAir flight (in Alaska) originated with the sale of an Alaskan airline ticket in Washington, whether through an online purchase or purchased at an Alaska Air Kiosk in an Alaskan Airport. Each such purchase of a ticket in Washington was, of course, identified by Alaska Airlines flight numbers for the various legs of the journey, including the PenAir flights taking place in Alaska: they too were assigned Alaska flight numbers, not PenAir flight numbers.
All tickets were thus sold through Alaska Airlines, including the ticket that led to David Oltman’s untimely death. His ticket was purchased in Washington, with the first ticket being from Wenatchee to Seattle and then on to Anchorage, where PenAir took over and crashed the plane. Without the sale of an Alaska Air ticket in Washington, David Oltman would have never been on that doomed PenAir flight. Long Arm thus beats two legs in Division I’s legal analysis.
Also noteworthy in the new Division I published decision: the court’s treatment of the recent U.S. Supreme Court’s personal jurisdiction opinion in Ford Motor Co. v. Montana Eighth Jud. Dist.7 Recall that in the Ford decision two different Ford vehicles were involved in motor vehicle accidents, one in Montana and one in Minnesota.8 For reasons that are unclear, plaintiffs did not apparently assert general jurisdiction, leaving the parties to fight over specific personal jurisdiction. In each case, Ford moved to dismiss on the grounds that personal jurisdiction had not been established in Montana or Minnesota respectively, because the vehicles involved in the accidents were not originally delivered or sold into either of the two states. Essentially Ford argued the entry of the two vehicles into Montana and Minnesota could not meet the due process requirements of International Shoe and other personal jurisdiction cases, because the causal nexus with the states was too remote, random, and attenuated.
In both cases, the relevant trial and appellate courts rejected Ford’s motions to dismiss, finding sufficient minimum contacts despite the fact that Ford did not initially sell the two vehicles into the two states. On review, the U.S. Supreme Court agreed in a unanimous decision in which concurring judges joined the majority decision.
The main novelty of the Ford Decision is the exploration and annunciation of a test for establishing personal jurisdiction under the “arise out of or relate to” language from prior case law. The implication is that specific personal jurisdiction can be established where a dispute “arises out of or relates to” events happening in the forum state of interest, even where the more traditional “but for” causality test is not met.
The Ford Court was at pains, however, to note that the more rigorous “but for” causality test was not being jettisoned or changed by the Court, and Division I echoed that point in Oltman.9 Ford thus expanded possible arguments for plaintiffs to establish personal jurisdiction over defendants. “But for” casualty remains a strong and viable method of establishing such personal jurisdiction. Division I was thus on very sound footing, and certainly did not stretch beyond the reach of Washington’s Long Arm Statute and mainstream specific personal jurisdiction analysis, when it concluded that “but for” the acts of PenAir’s agent Alaska Air, David Oltman never would have been on the two Alaskan legs flown by PenAir where he was killed by shrapnel exploding into the fuselage. Had Alaska Air never sold David Oltman a ticket including flights for the two Alaskan legs into Anchorage and Dutch Harbor, Oltman would not have been killed.
In summary, Division I affirmed, as Ford did, that “but for” causality remains a viable method for establishing personal jurisdiction over a foreign defendant. One properly interpreted long arm does beat two distant legs.
1 WL 3943051 (Div. I, June 12, 2023).
2 Oltman at *4.
3 Id. (arguing PenAir did not fly in and out of Washington).
4 Oltman at *1.
5 Oltman at *2.
6 Oltman at *5.
7 141 S. Ct. 1017, 1024, 209 L. Ed. 2d 225 (2021).
8 Ford, 141 S. Ct. at 1022.
9 Oltman *4.
