Opinion
No. 74-452
Decided August 12, 1975.
Action for damages allegedly resulting from defects in mobile homes purchased by plaintiffs. From dismissal of the action as to manufacturer of the homes and the bonding agency of the dealer, plaintiffs appealed. Affirmed in Part, Reversed in Part.
1. AUTOMOBILES — Mobile Homes — Within Statutory Definition — "Movable Structure" — Not — "Motor Vehicle." Under the applicable statutory definitions, mobile homes that were 65 feet long and fourteen feet wide, that were located in different mobile homes parks in Colorado, and that were used for residential purposes, all fall within the statutory definition of "movable structure," and cannot be considered to be within the statutory definition of "motor vehicles."
2. BONDS — Mobile Home Dealer — Coverage of Activities — "Motor Vehicle Dealer" — Action — Sale of Mobile Homes — Surety Company Dismissal — Proper. Where bond issued to mobile home dealer specified that it covered his activities as a "motor vehicle dealer," that bond does not cover dealer's activities in the sale of three mobile homes that properly fell within the statutory definition of "movable structures"; thus, in action arising out of the sale of those mobile homes, the surety company that had issued the bond was properly dismissed.
3. COURTS — Long-Arm Statute — "Transacting Business" Section — Goods Shipped Interstate — Seller Answerable — Design Defects — State of Ultimate Use. In regard to design defects in goods shipped interstate, the applicable principle to be utilized in determining whether "the transacting business" section of the "long-arm statute" is satisfied may be stated as follows: If a corporation elects to sell its products for ultimate use in another state, it is not unjust to hold it answerable there for any damage caused by defects in those products.
4. Texas Mobile Home Manufacturer — Sufficient Contacts — Colorado — "Long-Arm" Statute — "Transacting Business" Section — Applicable. Where Texas mobile home manufacturer had sold about 80 homes to dealers in Colorado in previous two and a half years, where at least 60 of those homes were delivered to Colorado by the manufacturer using its own personnel and equipment, where the manufacturer affixes a seal to the homes going to Colorado pursuant to Colorado laws, and where at one time the manufacturer had been a member of the Colorado manufacturing home association whose purpose is to promote the sale of mobile homes in Colorado, that manufacturer had sufficient contacts with Colorado to bring it under the jurisdiction of the Colorado courts by operation of the "transacting business" section of the "long-arm" statute.
5. Sale of Mobile Homes — Sufficient Allegations — "Long-Arm" Statute — Tort Section — Applicable. Where, in action arising out of sale of certain mobile homes, sufficient facts were alleged to support a claim that the alleged tortfeasor was negligent and that the negligent conduct proximately resulted in injury that occurred in Colorado, even though that conduct had been initiated in a foreign state, those allegations were sufficient to serve as a separate basis for according the Colorado court jurisdiction of Texas mobile home manufacturer under the tort section of the "long-arm" statute.
Appeal from the District Court of Adams County, Honorable Oyer G. Leary, Judge.
Gerald Himelgrin, for plaintiffs-appellants.
Morrato, Gueck Colantuno, P.C., James L. Hammer, for defendant-appellee Vintage Homes of Montezuma, Inc.
Grant, Shafroth, Toll McHendrie, P.C., John N. Dahle, for defendant-appellee Western Surety Company.
Plaintiffs, owners of three mobile homes, alleging damages as a result of defects in the homes, sued defendants, Aurora Mobile Homes and Real Estate, Inc., the dealership from which they purchased the homes; Western Surety Company, alleged to be the bonding agency for Aurora Homes; and Vintage Homes of Montezuma, Inc., the manufacturer. Western Surety moved to dismiss on the ground that the complaint failed to state a claim against it upon which relief could be granted. Vintage Homes, a Georgia corporation with its principal place of business in Texas, also moved to dismiss, on grounds that it was not subject to the court's jurisdiction under the "long arm statute," § 13-1-124, C.R.S. 1973. After a hearing, the court granted both motions and entered orders pursuant to C.R.C.P. 54(b). Plaintiffs appeal. We affirm the dismissal of Western Surety, but reverse the dismissal of Vintage Homes.
The Shaws, Blodgetts, and Pates, plaintiffs, purchased mobile homes from defendant Aurora Homes, respectively, on June 8, June 11, and August 15, 1973. The three homes were 65 feet long and 14 feet wide, were located in different mobile home parks in Colorado, and were used for residential purposes. Premised on allegations that the homes as purchased contained numerous defects which were uncorrected by the dealer and manufacturer, plaintiffs filed this suit based on alleged breach of warranty, breach of contract, negligence, and strict liability.
I.
Plaintiffs asserted in their complaint that Aurora Homes is a motor vehicle dealer within the definition of § 12-6-102(13), C.R.S. 1973, and was bonded as a motor vehicle dealer by Western Surety in the amount of $15,000 pursuant to § 12-6-111, C.R.S. 1973. They contend that the said bond covers Aurora's activities in the sale of these mobile homes, and therefore that the complaint does state a claim against Western Surety upon which relief can be granted. Western Surety, on the other hand, contends that the bond does not apply to the subject matter of the lawsuit since mobile homes are not motor vehicles within the definition of the applicable statutes. We agree with the surety company.
The pertinent definitions lie within the statute dealing with vehicles and traffic as follows:
"'Motor vehicle' means any self-propelled vehicle which is designed primarily for travel on the public highways and which is generally and commonly used to transport persons and property over the public highways." Section 42-1-102(46), C.R.S. 1973. (emphasis supplied)
"'Movable structure' means any wheeled vehicle exceeding either eight feet in width or thirty-two feet in length excluding towing gear and bumpers, without motive power, which is designed and commonly used for occupancy by persons for residential purposes, in either temporary or permanent locations, and which may be drawn over the public highways by a motor vehicle." Section 42-1-102(82)(b), C.R.S. 1973. (emphasis supplied)
The statute dealing with regulation of automobile dealers provides as follows:
"'Motor vehicle' means every vehicle intended primarily for use and operation on the public highways which is self-propelled and every vehicle intended primarily for operation on the public highways which is not driven or propelled by its own power but which is designed to be attached or to become a part of or to be drawn by a self-propelled vehicle, not including farm tractors and other machines and tools used in the production, harvesting, and care of farm products." Section 12-6-102(12), C.R.S. 1973. (emphasis supplied)
[1] It is clear that the three mobile homes in the instant case fall with the statutory definition of "movable structure." This definition recognizes the general or common use of the product as being for residential purposes. A motor vehicle, on the other hand, under both definitions quoted above, is designed primarily for travel on the public highways. We cannot, by any stretch of the statute or imagination, consider these movable structures to be "motor vehicles." A "forced, subtle, strained or unusual interpretation should never be resorted to where the language is plain, its meaning is clear, and no absurdity is involved." Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95.
State v. Modern Trailer Sales, Inc., 175 Colo. 296, 486 P.2d 1064, includes mobile homes in the definition of motor vehicles. However, we do not believe that case determinative here. At the time it was decided, the court relied on the definition of motor vehicles found in C.R.S. 1963, 13-6-2(2), which lists "trailer coaches" in the definition of motor vehicle. That statute has been amended and no longer lists trailer coaches within that definition. Instead, trailer coaches, mobile homes, and movable structures are grouped together in a separate definition of wheeled vehicles "for residential purposes." See § 42-1-102(82), C.R.S. 1973. Moreover, Modern Trailer Sales arose under a sales tax statute and deals only with revenue the state is entitled to receive from the sale of "a motor or other vehicle for which registration is required . . . ." (emphasis supplied) Section 39-26-113, C.R.S. 1973. Thus, since Modern Trailer Sales concerns issues of taxation and is premised upon the wording of a since amended statutory definition, it neither controls, nor is affected by, our ruling here.
By its terms, the bond issued by Western Surety to Aurora Homes pursuant to § 12-6-111, C.R.S. 1973, covers Aurora Homes in its activities as a motor vehicle dealer. Section 12-6-102(13), C.R.S. 1973, defines motor vehicle dealer as:
"Any person who, for commission or with intent to make a profit or gain of money or other thing of value, sells, exchanges, rents with option to purchase, offers, or attempts to negotiate a sale or exchange of an interest in new or new and used motor vehicles or who is engaged wholly or in part in the business of selling new or new and used motor vehicles, whether or not such motor vehicles are owned by such person." (emphasis supplied)
[2] Since the definition of a dealer specifies motor vehicles as the exclusive subject matter bringing a person within the coverage of the statute, we hold that the bond specified in this case does not cover Aurora Homes' activities in the sale of these mobile homes, i.e., these "movable structures." Thus, defendant Western Surety was properly dismissed.
II.
Plaintiff's contention that the court has jurisdiction over defendant Vintage Homes is based on the "long arm" statute, § 13-1-124, C.R.S. 1973, and that Vintage Homes was both engaged in the transaction of business within this state, and committed certain tortious acts within this state. We agree that the court did have jurisdiction.
[3] In order to satisfy the "transacting business" section of the statute, it must be shown that there were certain "minimum contacts" between the person and the state. See Lichina v. Futura, Inc., 260 F. Supp. 252 (D. Colo.). Each case must be decided solely on its own facts. See Colorado Builders' Supply Co. v. Hinman Brothers Construction Co., 134 Colo. 383, 304 P.2d 892. Specifically, regarding design defects in goods shipped interstate, the applicable principle is stated in Vandermee v. District Court, 164 Colo. 117, 433 P.2d 335, as follows:
"'[I]f a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products.'"
[4] Although, in the instant case, it was not shown that the dealer, Aurora, who sold the homes directly to plaintiffs was a franchisee of defendant Vintage Homes, testimony did show that, while contracts and payments are made in Texas, Vintage had sold about 80 homes to dealers in Colorado in the previous two and a half years, and that at least 60 of those homes were delivered to Colorado by Vintage using its own personnel and equipment. Moreover, Vintage affixes a seal in Texas to the homes going to Colorado pursuant to Colorado laws, and Vintage had at one time been a member of the Colorado Manufactured Home Association whose purpose is to promote the sale of mobile homes in Colorado. In view of this evidence, by operation of the "transacting business" section of the "long arm" statute, defendant Vintage Homes had sufficient contacts with this state to bring it under our jurisdiction. See Van Schaack Co. v. District Court, 189 Colo. 145, 538 P.2d 425; People ex rel. Jeffers v. Gibson, 181 Colo. 4, 508 P.2d 374.
[5] To bring one under the jurisdiction of the Colorado court by use of the tort section of the statute, sufficient facts need be alleged to support a claim that the alleged tort-feasor was negligent and that the negligent conduct proximately resulted in injury that occurred in Colorado, even if that conduct was initiated in a foreign state. See Alliance Clothing Ltd. v. District Court, 187 Colo. 400, 532 P.2d 351. Such allegations were made in the instant case; thus, the section of the statute serves as a separate basis for according the Colorado court jurisdiction of Vintage Homes. We hold, therefore, that the trial court erred in dismissing defendant Vintage Homes from this action.
Judgment is affirmed as to defendant Western Surety and reversed as to defendant Vintage Homes, and the cause is remanded for further proceedings not inconsistent with this opinion.
JUDGE PIERCE and JUDGE VAN CISE concur.