Nonmanufacturing Sellers Liability When the Manufacturer is Beyond Jurisdiction of the Court

Nonmanufacturing sellers are not always exempt from liability of harm caused by defective products.

Generally, in Texas, a nonmanufacturing seller of a defective product is not liable for harm caused by that product.[1] However, there is a provision that permits a plaintiff to proceed against a nonmanufacturing seller if the product's manufacturer is “not subject to the jurisdiction of the court.”[2] Moreover, if “after service on a nonresident manufacturer... the manufacturer fails to answer or otherwise make an appearance in the time required by law, it is conclusively presumed... that the manufacturer is not subject to the jurisdiction of the court unless the seller is able to secure personal jurisdiction over the manufacturer in the action.”[3]

Furthermore, a nonmanufacturing seller can secure personal jurisdiction over a nonresident manufacturer where the seller proves that (1) the manufacturer has been properly served according to the requirements of the applicable laws, including treaty requirements, and (2) the manufacturer established minimum contacts with Texas sufficient to satisfy federal and state constitutional due process requirements.[4] The holding in Fallon v. Grizzly Indus, Inc., is an illustrative example of a nonmanufacturing seller that was held strictly liable for a defective product.[5]

Fallon v. Grizzly Indus, Inc.

In Fallon, the plaintiff purchased a hydraulic cylinder from a Tractor Supply Store in Sherman, Texas, which was imported by defendant Direct Distributors, Inc. d/b/a/ Agmate (“Direct”).[6] Thereafter, the plaintiff replaced a non-working hydraulic cylinder on his bat-wing mower with the cylinder he purchased from the Tractor Supply Store.[7] On August 1, 2011, several months after he installed the cylinder on the bat-wing mower, the plaintiff and his friend, Troyce Walt, suffered severe and disabling injuries when one side of the bat-wing mower fell on top of them.[8]

The plaintiff asserted the following causes of action against defendant Direct and defendant Vulcan, the Taiwanese manufacture, including: (1) negligence; (2) strict liability; and (3) gross negligence.[9] The Court in Fallon, however, relied on Texas Civil Practice and Remedies Code §§ 82.003(a)(7)(B) and 82.003(c), which provide that a seller that did not manufacture a product is not liable for harm caused to the claimant by the product unless the claimant proves that the manufacturer of the product is not subject to the jurisdiction of the court.[10] Further, if a nonresident manufacturer fails to answer or otherwise make an appearance in the time required by law, it is conclusively presumed the manufacturer is not subject to the jurisdiction of the court unless the seller is able to secure personal jurisdiction over the manufacturer in action.[11]

The plaintiff attempted service on the nonresident manufacturer, Vulcan, in Taiwan, but it did not appear.[12] Additionally, the plaintiff did not secure personal jurisdiction.[13] Therefore, it was conclusively presumed that Vulcan was not subject to the jurisdiction of the Court, subjecting Direct to liability, even though Direct was a nonmanufacturing seller.[14] However, a trier of fact may still apportion responsibility upon the non-resident manufacturer.

A manufacturer that is beyond the jurisdiction of the court may still be designated as a responsible third party.


Diamond H. Recognition LP v. King of Fans, Inc.

In Diamond, the Court granted the nonmanufacturing seller's motion for leave to designate a nonresident manufacturer as a responsible third party.[15] In the case, a fire damaged a facility in Fort Worth, Texas, owned by plaintiff Diamond H. Recognition LP (“Diamond”).[16] Diamond sued KOF, the seller of a portable electric heater alleging the heater was the source of the fire.[17] Diamond alleged negligence, products-liability, and breach of warranty causes of action.[18] KOF sought leave, pursuant to Texas Civil Practice and Remedies Code § 33.04, to designate SingFun, the Chinese manufacturer of the heater, as a responsible third party.[19] KOF claimed it merely sold the heater in question and SingFun should bear responsibility for any defect that caused the fire at Diamond’s facility.[20]

In deference to the broad-application language of Section 33, the Court granted the motion for leave to designate SingFun, the Chinese manufacturer that was beyond jurisdiction of the Court, as a responsible third party.[21] Furthermore, the Court in Diamond pointed out that this conclusion in granting the motion to designate SingFun as a responsible third party is supported by the fact that the definition of “responsible third party” under Section 33 specifically excludes “a seller eligible for indemnity under section 82.002.”[22] Thus, the Texas legislature is aware of the potential interaction between Sections 33 and 82, yet has not specifically excepted out-of-jurisdiction manufacturers, as defined by Section 82.003(a)(7), from the coverage of Section 33.[23]


[1] See Tex. Civ. Prac. & Rem. Code § 82.003(a)

[2] See Tex. Civ. Prac. & Rem. Code § 82.003(a)(7)(B)

[3] See Tex. Civ. Prac. & Rem. Code § 82.003(c)

[4] Fields v. Klatt Hardware & Lumber, Inc., 374 S.W.3d 543, 544.

[5] Fallon v. Grizzly Indus., Inc., 2013 WL 2456372 (E.D. Tex. 2013)

[6] See Id.

[7] See Id.

[8] See Id.

[9] See Id.

[10] See Tex. Civ. Prac. & Rem. Code §§ 82.003(a)(7)(B) and 82.003(c)

[11] See Id.

[12] Fallon, 2013 WL 2456372 (E.D. Tex. 2013)

[13] See Id.

[14] See Id.

[15] Diamond H. Recognition LP v. King of Fans, Inc., 589 F.Supp.2d 772, 773

[16] See Id.

[17] See Id.

[18] See Id.

[19] See Id.

[20] See Id.

[21] Id. at 776.

[22] Id.; Tex. Civ. Prac. & Rem. Code § 33.011(6).

[23] Diamond, 589 F.Supp.2d 772, 777 (citing F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 691 (Tex. 2007)).

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