author: HUDSON, Judge.

text:
    MIDWEST FAMILY MUTUAL INSURANCE COMPANY, Depositors Insurance Company, Respondents, v. Douglas SCHMITT, et al., Defendants, Tracy Olene, Appellant.
    Nos. C8-02-563, C8-02-580.
    Court of Appeals of Minnesota.
    Oct. 8, 2002.

      Michael J. Tomsche, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, MN, for respondent Midwest.
    Robert E. Kuderer, Teresa M. Thompson, Johnson & Condon, P.A., Minneapolis, MN, for respondent Depositors.
    James A. Terwedo, Jordan, MN, for defendants.
    John P. Clifford, Meshbesher & Spence, Woodbury, MN, for appellant.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, TOUSSAINT, Chief Judge, and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Respondents Depositors Insurance Company (Depositors) and Midwest Family Mutual Insurance Company (Midwest Family) each brought declaratory-judgment actions seeking a declaration that the respective homeowner’s insurance policies issued by them did not provide coverage for appellant’s injuries. Appellant (Tracy Olene) and the insureds, Douglas and Mathias Schmitt, were attempting to lift 01-ene’s car off of a flatbed trailer and move it to another location. Olene was injured when a chain, which had been wrapped through the car windows and attached to a motorized crane, broke, causing the car to fall on top of him. The district court granted summary judgment in favor of respondents, finding that the motor-vehicle exclusion in respondents’ policies precluded coverage for appellant’s injuries. Because the breaking of the chain could not have occurred independently of the use of a motor vehicle, it is not a divisible, concurrent cause, and the motor-vehicle exclusion in the insurance policies precluded coverage for appellant’s injuries. We affirm.

FACTS

Mathias Schmitt (Mathias) runs an auto scrap business from his home, which includes a shop for working on cars. The business, known as R & P Auto, sells salvaged car parts and scraps the metal. Mathias has a dealer’s license from the State of Minnesota and pays $25 a year for a county permit to store oil waste. R & P Auto has a separate bank account; these funds are kept separate from personal finances. The Schmitts schedule “R & P Auto” on their income taxes as a “business.”

On March 4, 2000, Olene went to Mathias’s home to drop off his 1970 Malibu, which he was selling for scrap value. There, he was to meet with Douglas Schmitt (Doug), Mathias’s son. Olene brought his car to Mathias Schmitt’s home on a flatbed trailer owned by Olene.

Because Doug needed to transport the Malibu to a different location in the scrap yard, the car had to be lifted off of Olene’s trailer. In order to lift the car, Doug used a motorized crane, which he had bought for Mathias’s scrap yard for this specific purpose. The crane had a heavy-duty cable with a hook that attached to objects for lifting. Doug passed a chain through the window of the Malibu, and with Olene’s help, passed it through the car and folded both ends of the cable onto the roof of the car. Next, Doug secured both ends of the chain by connecting hooks at either end of the chain onto each other. Finally, he attached the crane cable, which has its own hook, to the chain wrapped around the car. Doug then activated the winch on the crane, and the car was lifted off the trailer.

When the Malibu was lifted off the trailer, Doug noticed that oil was leaking from the car, and he placed a pan underneath the car to catch the oil. When the pan began to fill, he removed it, which caused his hands to become soiled. Doug turned his back on Olene and grabbed a rag to wipe his hands. At this time, Olene grabbed a second pan, placed it underneath the vehicle, and, as he was coming out from under the car, the chain broke on a weld on one of the links. The Malibu fell on Olene, causing serious injuries.

Olene sued Mathias and Doug Schmitt, who tendered defense of the lawsuit to Depositors and Midwest Family, their respective homeowner’s liability insurers. Both insurers brought declaratory-judgment actions claiming that they were not obligated to defend or indemnify the Schmitts. Midwest Family also contends that Olene’s negligent-inspection claim is barred on appeal because it was not specifically alleged in Olene’s complaint. The district court granted summary judgment in favor of Depositors and Midwest Family, finding that the motor-vehicle exclusion under both policies precluded coverage. Olene appeals.

ISSUES

1. Is Olene’s claim that the injury occurred as a result of the negligent inspection and breaking of the chain properly before this court?

2. Did the district court err when it concluded that the motor-vehicle exclusion in the homeowner’s policies issued by Depositors and Midwest Family precluded coverage?

ANALYSIS

On review of a summary judgment, an appellate court will assess whether there are genuine issues of material fact and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The interpretation of insurance language is a question of law, which an appellate court will review independently. Meister v. Western Nat’l Mut. Ins. Co., 479 N.W.2d 372, 376 (Minn.1992).

“General principles of contract interpretation apply to insurance policies.” Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn.1998). If the language is clear and unambiguous, it “must be given its usual and accepted meaning.” Id. (quotation and citation omitted). An appellate court will construe exclusions from coverage narrowly against the insurer. State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn.1992). The burden of proving that the policy exclusion bars coverage rests on the insurance company. Id.

I.

Midwest Family argues that Ol-ene’s negligent-inspection claim is not properly before this court because it was not alleged in his complaint. We disagree.

Rule 8.01 of the Minnesota Rules of Civil Procedure provides for broad pleadings, also known as notice pleading. See Minn. R. Civ. P. 8.01. The Minnesota Supreme Court has stated that

[u]nder the Rules of Civil Procedure, only notice pleading is required. The rules do not require adherence to a mechanistic and rigid formula. Instead, the pleadings are liberally construed to insure that the defending party is given adequate notice of the claim.

L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn.1988) (citation omitted).

Olene stated in his complaint that “defendants were negligent in the way they unloaded the automobile and in the manner in which they used the equipment.” Although Olene did not specifically allege negligent inspection of the chain until his brief was filed here on appeal, Midwest Family was clearly put on notice that Olene’s claim involved some allegation concerning the manner in which the equipment was used. Thus, Olene’s more specific negligent-inspection claim should not have been a surprise to Midwest Family and falls within the scope of the broader allegations in his complaint. Because pleadings are liberally and broadly construed, the allegations in his complaint were adequate to support his later, more specific negligent-inspection claim.

II.

Olene claims that the breaking of the chain is a divisible, concurrent cause covered under the Schmitts’ homeowners’ policies, and that the district court erred in concluding that the motor-vehicle exclusion in the policies precludes coverage. The motor-vehicle exclusion language is identical in both policies. Under this exclusion, there is no coverage for bodily injury or property damage arising out of

[t]he ownership, maintenance, use, loading or unloading of motor vehicles or all other motorized land conveyances, including trailers, owned or operated by or rented or loaned to an “insured.”

Appellant, however, relies on Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917 (Minn.1983). In Noska, the Minnesota Supreme Court held that a plaintiff may recover on the tortfeasor’s homeowner’s policy, as well as the tortfeasor’s automobile liability policy, for injuries sustained through the use of a motor vehicle when “two independent acts, one vehicle-related and one nonvehicle-related * * *” combine to cause the injury. Noska, 381 N.W.2d at 921. In Noska, the insured placed fire embers in uncovered barrels on a trailer and hauled the barrels to a landfill. Noska, 331 N.W.2d at 920. Along the way, sparks flew out, igniting fires and causing extensive property damage. Id. The supreme court held that the homeowner’s policy provided coverage for the nonvehi-cle-related cause of the fire (placing live embers in an uncovered barrel with other debris), without regard to the intervention of the contributory cause of the use of the motor vehicle that was excluded from coverage. Id. at 923.

But appellant’s reliance on Noska is misplaced because the Minnesota Supreme Court, in State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62 (Minn.1992), limited the application of Noska to causes that arise independently of each other and that could have operated independently of the use of a motor vehicle to cause the accident. In Seefeld, the claimant was injured due to the negligent driving of an all-terrain vehicle (ATV), combined with a negligently designed and constructed trailer being pulled by the ATV. Seefeld, 481 N.W.2d at 65. The supreme court acknowledged its previous ruling in Noska and noted that an individual may recover from the automobile and the homeowner’s policy where “two independent acts, one vehicle-related and one nonvehicle-related, combine to cause an accident.” Id. at 64. Nevertheless, the supreme court concluded that the ultimate question is whether the non-automobile-related cause could have operated independently] of a motor vehicle to cause the loss. Id. at 65. Stated alternatively, if both causes are vehicle-related, the motor-vehicle exclusion precludes coverage.

The Seefeld court further narrowed the holding in Noska by focusing the inquiry on the actual loss or injury suffered. In other words, the relevant inquiry is whether the causes could have operated independently to cause the actual injury that occurred. Seefeld, 481 N.W.2d at 65. In doing so, the supreme court recognized that in some cases, hypothetical scenarios under which the injury could have been caused independently of a motor vehicle may be too remote to fall within the divisible, concurrent cause doctrine. Id. Thus, in Seefeld, the court stated that injuries caused by the negligent design and construction of the utility trailer “necessarily arose out of the use of a motor vehicle” and that “the only way in which [the injured girl] could have been exposed to the design risk was through the use of the motor vehicle.” Id. at 65, citing State Farm Ins. Cos. v. Seefeld, 472 N.W.2d 170, 174 (Minn.App.1991). The court added that “the remote possibility the injuries in this case could have been caused without the use of a motor vehicle is insufficient to bring the trailer’s negligent design and construction under Noska’s concurrent-cause doctrine.” Id. (emphasis added). The Seefeld court implicitly rejected the idea that coverage will be extended as long as the injured party can conceive any set of facts under which the injury might have occurred apart from the use of a motor vehicle.

Recently, this court has declined to apply Noska and instead has followed the more narrow standard set forth in Seefeld. In Austin Mutual Ins. Co. v. Klande, 563 N.W.2d 282, 283 (Minn.App.1997), Rodney, a minor, was a guest in the insured’s home. The insured’s son took Rodney on a ride on his father’s motorcycle. Id. After the ride, he parked the motorcycle in the garage and engaged one of the kickstands. Id. Rodney wandered into the garage, and as he attempted to mount the motorcycle, it fell over, pinning him underneath and causing him to burn his leg when it touched the hot muffler. Id. Rodney’s parents argued, as does Olene here, that the motor-vehicle exclusion did not preclude coverage because “the negligent supervision claim create[d] a concurrent causation situation putting this case within the holding of* ⅜ * Noska.” Id. at 284. This court concluded that Noska was inapplicable, reasoning that

[b]ecause the negligent supervision claim is so intertwined with and intimately connected to the insureds’ ownership and use of the motorcycle it cannot be said that the claim arose independently of the motorized vehicle related cause.

Id. (emphasis added).

Similarly, in Illinois Farmers Ins. Co. v. Duffy, 618 N.W.2d 613, 616 (Minn.App.2000), review denied (Minn. Jan. 26, 2001), this court again declined to apply Noska, relying largely on the “remote possibility” analysis articulated in Seefeld. In Duffy, respondent allowed his teenage daughter to throw a party and also purchased liquor for the party. Id. at 614. Two of the teenage guests left the party in a vehicle; the driver was drunk. Id. The drunk teenager struck a tree, killing himself and injuring the passenger. Id. Relying on Nos-ka, the insureds in Duffy argued that “just as damages [in Noska] could have resulted from the live embers without the act of driving, so too the intoxicated minors could have been injured through the use of alcohol without a motor vehicle, such as from alcohol poisoning or sustaining injuries from a fight.” Id. at 616. Rejecting this argument (and implicitly appellant’s remote, unrelated, alcohol-poisoning theory), the Duffy court concluded that “[ajbsent the minor driver’s use of the motor vehicle, the resulting injuries and death would not have occurred.” Id. The Duffy court added that “if there is only a ‘remote possibility’ that the injury could have occurred from the concurrent cause without a motor vehicle, the [divisible, concurrent cause] doctrine will not be applied.” Id.

Seefeld makes clear that for the divisible, concurrent-cause doctrine to apply, the injured party must establish that the non-vehicle-related cause could have operated independently of a motor vehicle to cause the loss. In addition, the possibility that the injury could have been caused without the use of a motor vehicle cannot be too remote.

Here, a chain was wrapped around the roof of a car, and a cable, attached to the motorized crane, lifted the car off the ground. The chain broke, dropping the car on Olene. In determining whether the motor-vehicle exclusion precludes coverage under the homeowner’s policies, we must determine whether the two causes, the non-vehicle-related cause (the breaking of the chain) and the vehicle-related cause (the use of the motorized crane), could have operated independently] to cause the loss. Seefeld, 481 N.W.2d at 65. If the injury caused by the chain breaking could have occurred only through the use of a motor vehicle, the motor-vehicle exception in respondents’ policies applies and coverage is precluded. See Duffy, 618 N.W.2d at 616.

Olene claims that Noska is applicable here because, in theory, the defective chain could have broken without the use of the motorized crane, making the two acts divisible. ■ Olene imagines a situation where

a stationary pole fitted with a horizontal, swinging boom to which a cable was attached that could be raised or lowered by a gas-powered winch. The boom could have been swung over the trailer, the cable attached to the chain that was wrapped around the roof of the car and then lifted off the trailer with the aid of the stationary winch. Before the boom could be swung over to deliver to a junk pile, the chain breaks, causing the same injury.

(Appellant’s Br. at 15.)

Olene stresses that under Noska, the court can consider alternate theoretical possibilities (even if unsupported by the factual record) in determining whether the injury could have occurred independently of a motor vehicle.

We acknowledge that Noska has never been overruled and that the district court may consider theoretical possibilities to explain how the accident could have occurred without a motor vehicle in determining whether to apply the divisible, concurrent-cause doctrine. But if those possibilities are too remote, the doctrine will not be applied. Seefeld, 481 N.W.2d at 65; Duffy, 618 N.W.2d at 616. Thus, the question here becomes whether the theory described by Olene, or any other theory, is too remote to have caused the injury independently of a motor vehicle.

We conclude that while the negligent inspection of the chain was a factor in the cause of the accident, this factor operated inextricably with the use of the motorized crane to cause Olene’s injury. While the chain may not have been incorporated into the design of the crane, it was used only for lifting objects in conjunction with the crane. The chain itself was useless without being used in conjunction with the motorized crane; and indeed, as respondents note, the risk of injury only existed because of the use of the motorized crane.

The motorized crane was supposed to lift the vehicle off the ground and transport it across the scrapyard. The vehicle weighed 3,500 pounds. It is impossible to imagine how 3,500 pounds could be lifted without using something that is motorized. Without the use of the motorized crane, which operated together with the chain to lift the car, Olene would not have been injured. Olene’s alternative theories are implausible, too remote, and completely without factual support.

Because the injuries caused by the breaking of the chain were so intertwined with the use of the motorized crane, the motor-vehicle exclusion in respondents’ homeowner’s policies applies, and there is no coverage for appellant’s injuries. In light of this decision, we need not reach Depositors’ claim that coverage was also precluded under their business-pursuits exclusion.

Affirmed.

      . The crane has three sets of wheels, dual on each side and dual in the back. It also has a four-cylinder gas motor and is designed to move across the land while lifting heavy objects. The crane has a three-speed manual transmission, brakes, and two white lights in the back.

      . Thus, the Seefeld court observed that in Nos-ka, there was a divisible, concurrent cause because the burning embers might have caused the fire and resulting damage through other negligence unrelated to the use of a motor vehicle. Seefeld, 481 N.W.2d at 65.

      . Appellant suggests that, under Noska, the injured party need not show that the actual injury could have occurred apart from the use of a motor vehicle, but only that an injury could have occurred under a range of possible scenarios. While we question whether Noska can be read that broadly, in any event, Seefeld focuses the inquiry on the actual injury suffered.


source: Caselaw Access Project

author: ROEHR, Circuit Judge.

license: Public Domain

text:
    2002 SD 116
    COLTON LUMBER COMPANY, Plaintiff and Appellee, v. Charles SIEMONSMA, Defendant and Appellant.
    No. 22172.
    Supreme Court of South Dakota.
    Considered on Briefs April 23, 2002.
    Decided Sept. 11, 2002.

      Scott Kading of Moore, Rasmussen, Kading & Kunstle for plaintiff Sioux Falls, and appellee.
    Michael A. Hauck of Bangs, MeCullen, Butler, Foye & Simmons, Sioux Falls, for defendant and appellant.
   ROEHR, Circuit Judge.

[¶ 1.] The circuit court denied Charles Siemonsma’s (Siemonsma) motion for enlargement of time to answer and granted Colton Lumber Company’s (Colton Lumber) application for default judgment. Siemonsma appeals. We reverse and remand.

FACTS

[¶ 2.] Colton Lumber provided materials and labor to Siemonsma in the construction of two houses-one in Sioux Falls and one at Lake Madison. Siemonsma paid the bulk of his account with Colton Lumber, but did not make the final payment. Colton Lumber’s attorney wrote Siemonsma demanding payment of the final $5,542.88. Siemonsma responded with a letter in which he declined to make final payment until certain credits were received, some defective materials replaced, and the projects were finished. In his letter Siemonsma also told Colton Lumber’s attorney that if he felt it necessary to proceed he should contact Siemonsma’s Sioux Falls attorney.

[¶ 3.] The summons and complaint were personally served on Siemonsma on July 28, 2001. He did not respond. On August 29 Colton Lumber’s attorney mailed a notice of application for default judgment to Siemonsma. Siemonsma returned from an out-of-state business trip on September 3 and met with his attorney on September 5. On the next day Siem-onsma’s attorney made a motion for enlargement of time to answer; he served an answer and counterclaim two days later.

[¶ 4.] Siemonsma had earlier established his residence in the Sioux Falls house. At the time the summons and complaint were served on him, he was in the process of moving to another residence. He signed the warranty deed for the sale of the residence on August 3 and completed the move to another residence on August 5.

[¶ 5.] Siemonsma’s employment requires him to make frequent out-of-state business trips. He left for a business trip to Los Angeles, California, on August 6 and returned on August 9. He left again on August 14 for Toronto, Canada, and returned on August 16. On August 20 he traveled to Dallas, Texas, and returned on August 22. Finally, he left for Richmond, Virginia, and Boston, Massachusetts, on August 24, to return on September 3.

[¶ 6.] After reading the affidavits filed by the parties and hearing the arguments of counsel, the circuit court denied Siem-onsma’s motion for enlargement of time to answer, struck Siemonsma’s answer, and granted Colton Lumber’s application for default judgment.

STANDARD OF REVIEW

[¶ 7.] SDCL 15 — 6—6(b) provides in part:

When by this chapter or by a notice given thereunder or by an order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion
(2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect
but it may not extend the time for taking any action under §§ 15 — 6—50(b), "15-6 — 59(b) and (d), and 15-6-60(b), except to the extent and under the conditions stated in them, (emphasis added).

Thus, we review a grant or denial of enlargement of time to file an answer under the abuse of discretion standard. Tingle v. Parkston Grain Co., 442 N.W.2d 252, 253 (S.D.1989). We have previously held that “[a]n abuse of discretion occurs only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached the same conclusion.” Elliott v. Cartwright, 1998 SD 53, ¶ 8, 580 N.W.2d 603, 604 (quoting State v. Nguyen, 1997 SD 47, ¶ 9, 563 N.W.2d 120, 122). “The trial court’s discretion is to be exercised liberally in accord with legal and equitable principles in order to promote the ends of justice.” Smith v. Hermsen, 1997 SD 138, ¶ 8, 572 N.W.2d 835, 838 (quoting In re Estate of Nelson, 1996 SD 27, ¶ 15, 544 N.W.2d 882, 886).

DECISION

[¶ 8.] A defendant must answer the plaintiffs summons and complaint within thirty days. SDCL 15-6-12(a). After this time has expired, a circuit court may in its discretion enlarge this time and permit the answer if the failure to answer was the result of excusable neglect. SDCL 15 — 6—6(b). In Tingle, 442 N.W.2d at 254, we recognized that this excusable neglect is closely analogous to the excusable neglect which must be shown to set aside a default judgment or other final judgment under SDCL 15-6-55(c) and 15-6 — 60(b).

[¶ 9.] “Excusable neglect must be neglect of a nature that would cause a reasonable, prudent person to act similarly under similar circumstances.” Elliott, 1998 SD 58 at ¶ 9, 580 N.W.2d at 604, 605 (quoting Clarke v. Clarke, 423 N.W.2d 818, 821 (S.D.1988)). “The term excusable neglect has no fixed meaning and is to be interpreted liberally to insure that cases are heard and tried on the merits.” Smith, 1997 SD 138 at ¶ 10, 572 N.W.2d at 838 (quoting Eby v. Misar, 345 N.W.2d 381, 383 (S.D.1984)). Denial of additional time to answer a complaint results in entry of a default judgment. “Default judgments are not favored in the courts since their effect is to prevent a trial on the merits.” National Surety Corp. v. Shoemaker, 86 S.D. 302, 309, 195 N.W.2d 134, 138 (1972).

[¶ 10.] Although the principles in deciding whether or not to enlarge time to answer are similar to those in deciding whether or not to set aside a default judgment or other final judgment, there is one important difference. “When considering cases involving SDCL 15 — 6—60(b), we must remember its purpose is ‘to preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of all the facts.’ ” Meier v. McCord, 2001 SD 103, ¶ 21, 632 N.W.2d 477, 483 (quoting Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)). However, when considering a case under SDCL 15 — 6—6(b), no judgment has yet been entered. The court need not be concerned with the sanctity of final judgments.

[¶ 11.] In Tingle, 442 N.W.2d at 255, we affirmed the circuit court’s refusal to enlarge the time to answer the complaint. In that case, the plaintiff began a foreclosure action against two defendants. One defendant faded to answer. The circuit court set the matter for trial. Seventy-five days after its answer was due and thirteen days before the scheduled trial, the defaulting defendant attempted to answer.

[¶ 12.] In the present case, Siemonsma was in the process of moving his residence at the time of service. He was then involved in the sale of the home and thereafter spent much of the thirty days out of the state on business trips. Within the second day after returning to state from an eleven-day business trip, Siemonsma met with his attorney. He made his motion to enlarge the next day -three days after his return to South Dakota and, unlike the case in Tingle, nine days after his answer was due. In negotiations prior to the commencement of suit, Siemonsma asked that Colton Lumber’s attorney contact Siemonsma’s attorney if he felt it necessary to proceed; although there was no legal requirement that Colton Lumber’s attorney do so, the request bolsters Siem-onsma’s claim of excusable neglect. We conclude that Siemonsma’s neglect was excusable.

[¶ 13.] In Rule 60(b) cases, we have consistently required the moving party to show not only excusable neglect, but also a probable meritorious defense. Meier, 2001 SD 103 at ¶ 24, 632 N.W.2d at 483; Elliott, 1998 SD 53 at ¶ 9, 580 N.W.2d at 604; Roso v. Henning, 1997 SD 82, ¶ 11, 566 N.W.2d 136, 141.

The party seeking relief must present facts either by answer or affidavit from which it could be inferred that upon trial he would be entitled to a judgment more favorable to himself that the judgment from which he is seeking relief. An applicant for relief from a judgment satisfies the meritorious defense requirement, however, if he makes only a prima facie showing. The rule does not intend that there should be two trials on the merits.

Frieberg v. Frieberg, 509 N.W.2d 415, 419 (S.D.1993). We now adopt the meritorious defense requirement for those Rule 6(b) cases in which, after expiration of the thirty days, the moving party seeks an enlargement of time to file an answer.

[¶ 14.] The affidavit Siemonsma submitted in support of his motion to enlarge set forth specific facts regarding his claim of credits not received, defective materials needing replacement, and parts of the project unfinished. He has satisfied the meritorious defense requirement.

[¶ 15.] Siemonsma has demonstrated excusable neglect and a meritorious defense. The circuit court abused its discretion when it denied his motion to enlarge.

[¶ 16.] We reverse and remand.

[¶ 17.] GILBERTSON, Chief Justice, and AMUNDSON, KONENKAMP, and ZINTER, Justices, concur.

[¶ 18.] ROEHR, Circuit Judge, for SABERS, Justice, disqualified.

      . Siemonsma’s motion was denominated motion for relief from default and made no reference to any specific statute. No judgment had yet been entered. The motion was clearly a motion to enlarge under SDCL 15 — 6—6(b), not a motion to set aside a default judgment under SDCL 15-6-55(c) and 15-6-60(b).


author: GORS, Acting Justice.

text:
    2002 SD 115
    Jennifer Lee HARRIS, Plaintiff and Appellant, v. BEST BUSINESS PRODUCTS, INC., a South Dakota Corporation, Defendant and Appellee.
    No. 22065.
    Supreme Court of South Dakota.
    Argued March 28, 2002.
    Decided Sept. 11, 2002.

      David A. Bradsky of Bradsky and Brad-sky, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Eric C. Schulte, Thomas M. Frankman of Davenport, Evans, Hurwitz and Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   GORS, Acting Justice.

[¶ 1.] Jennifer Harris (Jennifer) sued Best Business Products, Inc. (Best) for negligence arising out of an automobile accident. Best owned the van Jennifer was driving at the time of the accident. Jennifer alleged Best was liable for personal injuries she incurred when the right rear tire blew out and the van rolled. Best brought a motion for summary judgment claiming that Jennifer was a trespasser, and therefore it owed no duty to Jennifer, or alternatively, only the limited duty of not inflicting willful and wanton injury. The trial court granted Best summary judgement. We reverse.

FACTS AND PROCEDURE

[¶ 2.] Best is a corporation engaged in the business of selling office machines, including copiers, printers and computers. Jennifer is the daughter of Marvin (Marvin) and Karla Harris. Marvin was employed with Best as a color copier salesman. As part of his employment, Marvin was required to personally deliver items he sold. On July 18,1997, Marvin was scheduled to drive a van owned by Best from Sioux Falls to Rapid City in order to deliver three color copiers. A couple of days before the trip, Marvin asked Jennifer if she would like to ride along. Jennifer, who was sixteen at the time, accepted.

[¶ 3.] On the morning of July 18, 1997, Marvin and Jennifer arrived at Best to pick up the van, a 1991 Ford three-quarter-ton van. By the time Marvin and Jennifer arrived, warehouse employees had already loaded the van with the three copiers, whose weight totaled 1,117 pounds. Marvin and Jennifer left for Rapid City shortly before 9:00 a.m. Approximately an hour and one half to two hours after their departure, Marvin became tired and asked Jennifer to drive. They stopped at a rest area, and Jennifer took over driving the van. Jennifer had driven approximately 70 to 80 miles when the van’s right rear tire blew out, and Jennifer lost control of the van. The van rolled several times and ended up on the median of the interstate. Jennifer sustained substantial personal injuries and Marvin died as a result of his injuries.

[¶ 4.] Jennifer brought suit against Best for negligence, alleging that Best was negligent in failing to properly maintain the van. Examination of the right rear tire revealed that it was severely worn before the blowout. Two sets of tread depth measurements taken on the tire showed that there were areas where all of the tread had worn smooth and no areas where the depth was greater that ⅝ of an inch. The tire blew out from the inside due to internal weakness in the tire and separation of its tread.

[¶ 5.] Jennifer’s two experts, Fernand Marquis, Ph.D. (Marquis) and Thomas Al-corn, P.E. (Alcorn), agreed that the tire was unsafe for highway driving, and that the blowout would not have given Jennifer adequate time to react to bring the van under control. Marquis concluded that “[t]he cause of the tire blowout was the extensive, gradual, and long-term cumulative damage caused to the tire prior to the accident.” At his deposition Alcorn was asked, “[a]re you saying that it is your testimony here that the van — the tire blowing caused the loss of control in and of itself without the driver being able to do anything to avoid it?” Alcorn responded, “[y]es.” Both experts also agreed that neither speed nor driver inexperience was a factor in the accident because the sudden failure of the tire would not have allowed sufficient time to react.

[¶ 6.] Best moved for summary judgment, claiming that Jennifer was a trespasser at the time of the accident, and thus Best cannot be held liable to Jennifer as a matter of law. Best also claimed that Marvin had no authority to invite Jennifer along on the business trip. The trial court granted Best’s motion for summary judgment. Jennifer appeals.

STANDARD OF REVIEW

[¶ 7.] This Court has set forth the following standard of review for appeals from summary judgment:

“Under our familiar standard for reviewing summary judgments, we decide only whether genuine issues of material fact existed and whether the law was correctly applied.” When making this analysis, we view the evidence in the light most favorable to the nonmoving party and resolve reasonable doubts against the moving party. As we take an independent review of the record, we are not bound by the trial court’s factual assessments in granting summary judgment.

Pierce v. City of Belle Fourche, 2001 SD 41, ¶ 7, 624 N.W.2d 353, 355 (internal citations omitted).

[¶ 8.] In negligence cases, summary judgment is proper “if no duty exists as a matter of law.” Id. at ¶ 8, 624 N.W.2d at 355 (citing Peterson v. Spink Elec. Coop., Inc., 1998 SD 60, ¶¶ 1-2, 578 N.W.2d 589, 591). “Although foreseeability is a question of fact in some contexts, foreseeability in defining the boundaries of a duty is always a question of law.” Smith v. Lagow Constar. & Developing Co., 2002 SD 37, ¶ 18, 642 N.W.2d 187, 192. See, Poelstra v. Basin Elec. Power Coop., 1996 SD 36, ¶ 9, 545 N.W.2d 823, 826.

ANALYSIS

[¶ 9.) The Duty

[¶ 10.] An owner or driver of a motor vehicle has a duty to everyone on the highway to have safe equipment. This duty includes safe tires. The standard of care for tread depth is set forth in SDCL 32-19-13, which provides:

No person may operate on the public highways of this state a licensed motor vehicle which has a mounted tire ... having a minimum tread depth less than two thirty-seconds of an inch on any two adjacent tread grooves.

The tread depth standard applies not only to drivers but also to the owners of the motor vehicles they drive. Therefore, Best had a duty to equip its vehicles with safe tires.

[¶ 11.] The Defense

[¶ 12.] Best concedes that it owes a duty to equip its vehicles with safe tires to everyone on the highway, including other drivers, passengers and pedestrians. However, Best claims Jennifer is an exception to this duty. Best contends that it had a company policy that provided only employees could ride in company vehicles. Therefore, Best argues Jennifer was a trespasser at the time of the accident, and therefore it owed no duty to Jennifer. The trial court agreed and granted summary judgment. Jennifer appeals, claiming there is a genuine issue of material fact as to whether she is a trespasser.

[¶ 13.] There is no dispute that Marvin was entitled to drive the van, and there is no dispute that Marvin gave Jennifer permission to drive the van. Best claims, however, that it had an unwritten policy forbidding employees to bring passengers along on business trips, and therefore Marvin had no authority to invite Jennifer along.

[¶ 14.] Marvin’s supervisor testified that neither he nor anyone else at Best ever talked to Marvin about the policy. Even the president of the company, Betty Best (Betty), testified that Marvin might not have been informed about the policy. Karla Harris, Marvin’s widow, testified that after the accident Betty told her that the company had no policies about allowing passengers in its vehicles and did not intend to implement any in the future. At her deposition, when asked if she told Karla Harris there was no policy on passengers, Betty responded, “No I don’t remember telling her that, but I may have.” Betty also was asked, “when Marvin was hired was it even ever discussed whether or not you could take somebody with you?” She responded, “I doubt it.”

[¶ 15.] Finally, we note that whether Marvin had authority to invite Jennifer on the trip is generally a question of fact for the jury. Krause v. Reyelts, 2002 SD 64, ¶ 28, 646 N.W.2d 732.

[¶ 16.] The Decision

[¶ 17.] The issue of whether or not Jennifer is a trespasser does not, however, determine whether Best owed Jennifer a duty to equip safe tires on the van. SDCL 20-9-1 provides that “[e ]very person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.” (emphasis added). There is no reason why Best should owe a duty of reasonable care to its own employee in its van, but not to a person riding with the employee’s permission. The duty to exercise reasonable care is as appropriate in one situation as it is in the other.

[¶ 18.] Best relies on the holding of Antonen v. Swanson, 74 S.D. 1, 12, 48 N.W.2d 161, 167 (1951), a respondeat superior case, where this Court stated:

An employee has no implied authority to invite or permit a third person to ride in a motor vehicle in his charge.... The burden was on the plaintiff to prove that [the employee] had authority to invite or permit him to ride.... There ... is no implication that [the employee] has authority to invite or permit others to ride with him.... Plaintiff was in no sense an invitee of the owner of the truck and no liability against him could be founded on ordinary negligence.

(internal citations omitted). Antonen’s rationale does not apply in this case. In Antonen, it was the employee’s negligence that caused the injury. Here, it is the employer’s negligence that caused the injury. A Comment to the Restatement (Second) of Agency § 242 (1957) points out that if a

person entering the master’s ... vehicle does so at the invitation of or with the permission of a servant who has no authority or apparent authority to give such invitation or permission, and the one entering has otherwise no privilege to enter, the master is not subject to liability to such person because of the conduct of the inviting servant. The master is, however, subject to liability to the intruder for his own harmful conduct ... as he would be had no invitation been extended.

(emphasis added).

[¶ 19.] In Lagow Const, this Court recently stated, “[a] duty of protection occurs when a person’s affirmative act or omission exposes another to greater harm.” 2002 SD 37 at ¶ 16, 642 N.W.2d at 191. “Foreseeability of high risk of harm is the basis for delineating the boundaries for a duty of protection.” Id. at ¶ 17. In this case it is foreseeable that if Best did not equip its vehicles with safe tires, the tires could create harm to pedestrians, other vehicles and their occupants, and anyone else in a company vehicle. Since Best had a duty to all persons on the highway, it is not a defense that Jennifer may have been a trespasser in the vehicle.

CONCLUSION

[¶ 20.] Because we conclude that Best owed Jennifer a duty to equip its vehicles with safe tires, this case must now go to a jury. The remaining questions — whether Best breached the duty to Jennifer, and if so, whether that breach proximately caused Jennifer’s injuries — are best resolved by a jury. We accordingly remand Jennifer’s action against Best for further proceedings consistent with this opinion.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS and AMUNDSON, Justices, concur.

[¶ 22.] KONENKAMP, Justice, disqualified, did not participate.

[¶ 23.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . At the time of the accident, Jennifer only possessed a learner's permit and had never taken a driver's education course. However, Marquis testified, "If you [had] placed a professional driver driving this vehicle and you had the combination of tread separation and tread blowout, there was no way the driver ... could have controlled this vehicle.” Similarly, at Alcorn's deposition he was asked, "And because of going 80 miles per hour, you don’t have enough time to react before the van goes over the shoulder?” Alcorn responded, "It wouldn't matter; 80, 70, 60 or 50, she still wouldn’t have time to react.”

      . Other jurisdictions have held the same. See Metropolitan Life Ins. Co. v. Gosney, 101 F.2d 167, 171 (8thCir.1939) (stating, “an employee using an automobile in his employer's business has no implied or apparent authority to invite others to ride with him, and that, if a passenger who accepts the unauthorized invitation of the employee is injured, the employer is not liable, for the reason that the passenger is not a guest of his but merely a guest of his employee."); Shannon v. Pacific Rail Services, 70 F.Supp.2d 1243, 1247 (D.Kan.1999) (stating, “one who accepts a ride with a servant who has no express or implied authority to invite passengers ... is as to the master a trespasser to whom no duty is owed except not to willfully injure him.”); Morris v. Dame’s Executor, 161 Va. 545, 171 S.E. 662, 672 (1933) (recognizing that a passenger riding in an employer’s vehicle at the invitation of the servant “stands as to the master in the shoes of a trespasser.”).


author: MAHAN, P.J.

text:
    ROQUETTE AMERICA, INC., a Delaware Corporation, and Roquete Freres, a French Corporation, Plaintiffs-Appellees, v. Laurent GERBER, a French Citizen; Amylum Belgium N.V., a Belgian Corporation; Amylum Group Services, a Belgian Corporation; Amylum France SAS, a French Corporation; Amylum SPI Europe, a French Corporation; and Carole Piwnica, a Belgian Citizen, Defendants-Appellants.
    No. 00-1076.
    Court of Appeals of Iowa.
    June 19, 2002.

      Mark Weinhardt, Mark McCormick, and Steven M. Colloton of Belin Lamson McCormick Zumbach Flynn, Des Moines, Jonathan K. Cooperman and Frank C. DiPrisco of Kelley, Drye & Warren, New York, New York, and James P. Hoffman, Keokuk, for appellants.
    Oleg Rivkin, Eric Lindquist, and Kristen D. Perrault of Fox, Haran & Camerún, L.L.P., New York, New York, and Joseph R. Gunderson and Edward C. Poulsen of Genderson, Sharp, Trout & Rhein, P.C., Des Moines, for appellees.
    Heard by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
   MAHAN, P.J.

Defendants appeal the decision of the district court that denied their motion to dismiss a tort action that alleged breach of a covenant not to compete, misappropriation of trade secrets, and intentional interference with contractual relations. They claim their motion to dismiss should have been granted due to lack of personal jurisdiction and forum non conveniens. We reverse the district court.

I. Facts

Roquette Freres (Roquette) is a French corporation which manufactures starches and starch derivatives, such as sorbitol, primarily for distribution in Europe. Ro-quette America, Inc. (RAI) is a Delaware corporation which is a wholly-owned subsidiary of Roquette. RAI produces starches and starch derivatives at plants in Keokuk, Iowa, and Gurnee, Illinois, for distribution in North America.

Laurent Gerber, a French citizen, began employment with Roquette in 1976. With the agreement of Roquette, in 1993 Gerber accepted the position of Vice President— Operations of RAI in Iowa for a period of four years. Upon the request of the CEO of RAI, Robert Ireland, Gerber signed a covenant not to compete on March 15, 1994. The covenant prohibited Gerber from obtaining employment with a competitor for a period of two years after he ceased working for RAI. Gerber left his employment with RAI in September 1997 and returned to France to become Ro-quette’s deputy technical director.

In April 1998 Gerber was contacted by a Belgian corporate recruitment firm on behalf of the Amylum Group, a group of multinational companies which also manufactures starches and starch derivatives, primarily for distribution in Europe. When an RAI employee was in France in August 1998, Gerber obtained a document that dealt with liquid sorbitol production. Gerber received the document after he had resigned from Roquette, but while he was still working there. In November 1998 Gerber began working for the Amylum Group,

II. Decision in District Court

On March 23, 1999, RAI and Roquette filed suit in Iowa district court against Gerber; Amylum Belgium, N.V., a Belgian corporation; Amylum Group Services, a Belgian corporation; Amylum France SAS, a French corporation; Amylum SPI Europe, a French corporation; and Carole Piwnica, a Belgian citizen and chairperson of Amylum Belgium. Piwnica and the Amylum corporations together will be called the Amylum Group.

Plaintiffs raised claims against Gerber alleging breach of a noncompetition covenant, breach of a nondisclosure covenant, and breach of fiduciary duty. Plaintiffs claimed the Amylum Group had engaged in intentional interference with contractual relations and procurement of breach of fiduciary duty. Plaintiffs claimed all defendants had engaged in statutory and common law misappropriation of trade secrets and conversion. Plaintiffs’ claims were based on a theory that Gerber disclosed trade secrets while employed by the Amylum Group, and that the Amylum Group used this information to advance its market position, particularly in the sale of sorbitol in the United States.

Defendants filed a motion to dismiss based on international comity, lack of personal jurisdiction, and forum non conve-niens. They asserted the case should be tried in Europe, where the alleged torts occurred and where most of the witnesses lived. The district court permitted discovery in conjunction with the motion, which resulted in the filing of extensive depositions and exhibits. In addition, a four-day hearing was held on the motion.

On May 25, 2000, the district court entered a ruling denying the motion to dismiss. The district court concluded:

A review of the facts established in conjunction with the Defendants’ Motion to Dismiss leads this court to conclude that all three of the requirements of Calder exist in this suit. The defendants committed one or more intentional torts expressly aimed at this jurisdiction and the brunt of the harm is felt here. This court has personal jurisdiction over the defendants.

The court also determined Iowa was not an inconvenient forum. No postruling motions were filed. Defendants sought an interlocutory appeal, and this request was granted by the supreme court.

III. Scope of Review

When reviewing a ruling on a motion to dismiss due to lack of personal jurisdiction, we accept as true the allegations of the petition and the contents of uncontroverted affidavits. Hodges v. Hodges, 572 N.W.2d 549, 551 (Iowa 1997). The district court’s findings of fact have the effect of a jury verdict and are subject to challenge only if not supported by substantial evidence in the record. Twaddle v. Twaddle, 582 N.W.2d 518, 519 (Iowa Ct.App.1998). We are not bound by the court’s application of legal principles or its conclusions of law. Id.

IY. Personal Jurisdiction

A. Background

Under the Due Process Clause of the Fourteenth Amendment, personal jurisdiction over a nonresident defendant only exists when the defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Hodges, 572 N.W.2d at 551 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945)). The contacts are sufficient if the defendant “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980). This “fair warning” requirement is satisfied if the defendants have purposely directed their activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283, 1298 (1958). A nonresident defendant should not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528, 542 (1985).

Under Iowa Rule of Civil Procedure 1.306, Iowa’s jurisdiction reaches to the widest, due process parameters of the federal constitution. Meyers v. Kallestead, 476 N.W.2d 65, 67 (Iowa 1991). When a defendant. raises a challenge on these grounds, the plaintiff has the burden to present a prima facie showing of personal jurisdiction. State ex rel. Houk v. Grewing, 586 N.W.2d 224, 226 (Iowa Ct.App.1998). Once the plaintiff establishes a prima facie case, the defendant has the burden of producing evidence to rebut that showing. Id.

In determining whether a party’s contacts with Iowa are sufficient to confer jurisdiction, we consider the following factors:

(1) the quantity of the contacts;
(2) the nature and quality of the contacts;
(3) the source of and connection of the cause of action with those contacts;
(4) the interest of the forum state; and
(5) the convenience of the parties.

Cascade Lumber Co. v. Edward Rose Bldg. Co., 596 N.W.2d 90, 92 (Iowa 1999). The first three factors are the most important. Id.

B. Direct Contacts

It is clear defendants have no direct contacts with Iowa. They have no offices, agents, employees, or property in Iowa, and they neither ship nor receive products from Iowa. While Gerber formerly lived in Iowa, he had been living in France for about one and one-half years at the time the suit was filed. Thus, the first two factors, the quantity and quality of contacts, weigh against the assertion of jurisdiction in Iowa. See Guinness Import Co. v. Mark VII Distrib., Inc., 153 F.3d 607, 614 (8th Cir.1998).

C. Calder “Effects” Test

The third factor distinguishes whether jurisdiction is specific '6'r general. EFCO Corp. v. Aluma Sys., USA, Inc., 983 F.Supp. 816, 820 (S.D.Iowa 1997). The Eighth Circuit has stated:

Specific jurisdiction refers to jurisdiction over causes of action arising from or related to a defendant’s actions within the forum state, while general jurisdiction refers to the power of a state to adjudicate any cause of action'involving1 a particular defendant, regardless of where the cause of action arose.

Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 819 (8th Cir.1994); see also Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, 104 S.Ct. 1868, 1872-73, 80 L.Ed.2d 404, 411-12 (1984).

Plaintiffs claim Iowa has specific jurisdiction over defendants under the “effects” test found in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). In Calder, the United States Supreme Court determined California had personal jurisdiction over a suit brought in California against Florida defendants who had engaged in an intentional tort (libel) by publishing an article in California, which they knew would have an impact upon the individual plaintiff, who lived and worked in California. Id. at 789, 104 S.Ct. at 1487, 79 L.Ed.2d at 812. The court noted the brunt of the harm to plaintiff was suffered in California. Id. at 788-89, 104 S.Ct. at 1487, 79 L.Ed.2d at 812. The court concluded that under these circumstances, defendants must “reasonably anticipate being haled into court there” to answer for the truth of the statements made in their article. Id. at 790, 104. S.Ct. at 1487, 79 L.Ed.2d at 812 (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501).

Courts have interpreted the “effects” test as requiring a plaintiff to show: (1) the defendant’s acts were intentional; (2) these actions were uniquely or expressly aimed' at the forum state; and (3) the brunt of the harm was suffered in the forum state, and the defendant knew the harm was likely to be suffered there. Estate of Witko v. Hornell Brewing Co., 156 F.Supp.2d 1092, 1097-98 (D.S.D.2001); Zumbro, Inc. v. Calif. Natural Prods., 861 F.Supp. 773, 782-83 (D.Minn.1994); see also IMO Indus., Inc. v. Keikert AG, 155 F.3d 254, 265-66 (3rd Cir.1998) (second and third elements switched).

The torts alleged in this case may be considered intentional torts. As we noted, for purposes of considering the motion to dismiss, we accept as true the allegations of the petition. Hodges, 572 N.W.2d at 551. Thus, the first element of the Calder test has been satisfied.

In considering the second element, it is not clear defendants’ actions were uniquely or expressly aimed at Iowa. One court has stated the intended forum or focal point regarding one international company’s interactions with -another international company is often difficult to determine. EFCO Corp., 983 F.Supp. at 821. Under Calder, mere foreseeability of injury to a citizen of the forum is not sufficient; but rather, the injury must be caused by activity intentionally directed by defendants at the plaintiff and his or her forum. CoStar Group, Inc. v. LoopNet, Inc., 106 F.Supp.2d 780, 786 (D.Md.2000). This element relates to the due process requirement that defendants must have acted toward the forum state with sufficient intent to make them “reasonably anticipate being haled into court there.” Noonan v. Winston Co., 135 F.3d 85, 90 (1st Cir.1998).

In EFCO Corp., an Iowa corporation and its Canadian subsidiary brought suit against California and Canadian companies, alleging trade secret violations. In determining whether defendants “aimed” their actions at Iowa, the court noted, “EFCO and Aluma are two of three major competitors in the same market. They have been engaged in direct competition for several years.” EFCO Corp., 983 F.Supp. at 823. The court concluded, “EFCO’s headquarters and principal place of business, and therefore the Iowa forum, was clearly the focal point of the alleged misappropriation.” Id.

We find EFCO distinguishable from the facts in the present case. In EFCO, the focus was the primary company in Iowa and not the subsidiary in Canada. Here, Roquette in France is the primary company and RAI is its wholly owned subsidiary. Also, in the past, defendants were direct competitors of Roquette in Europe, not RAI in the United States. Roquette and Amylum Group are two major competitors in the same market, and have been engaged in direct competition for several years. Amylum Group and RAI are not direct competitors. The evidence showed Amylum Group had made only nominal shipments of any substances related to sorbitol to the United States in the past, and none specifically to Iowa. Therefore, it seems more likely the focal point of defendants’ actions was Europe.

Plaintiffs attempt to raise the specter that Amylum Group might ship products to the United States in the future. The district court concluded Amy-lum Group was attempting to sell its products in the United States. The district court’s conclusion, however, was based in part on facts that occurred after the petition was filed on March 23, 1999. The court considered an Amylum Group strategic review that occurred in April or May 1999, and negotiations for an attempted sale of sorbitol in the United States beginning in June 1999. We determine only contacts established before the petition was filed should be considered. See United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 619 n. 4 (1st Cir.2001); Noonan, 135 F.3d at 93 n. 8. Jurisdiction should be based on defendants’ actions as of the time the petition was filed, not later contacts with a forum. Swiss Am. Bank, 274 F.3d at 619 n. 4. Based on defendants’ actions before the petition was filed in this case, we find there is not substantial evidence to support the district court’s conclusion Amylum Group was engaged in direct competition with RAI.

In addition, Amylum Group did not reach into Iowa to hire Gerber; he was living in France at the time, which undercuts the assertion that Amylum Group expressly aimed its actions at Iowa. See Drayton Enter., L.L.C. v. Dunker, 142 F.Supp.2d 1177, 1184 (D.N.D.2001).

Based on all of these factors, we conclude there is not sufficient evidence to show defendants’ actions were uniquely or expressly aimed at Iowa, or that defendants could reasonably anticipate being haled into court here. We conclude plaintiffs have not established the second element of the Calder test.

On the third element, we find there is not substantial evidence to show the brunt of the harm incurred by defendants’ actions was suffered in Iowa. Obviously, some harm, the “effects” of the alleged torts, was suffered by RAI in Iowa. In regard to this third element, however,- in the Eighth Circuit it is not sufficient if the sole connection between the defendants and the forum is the effects of an intentional tort. Hicklin Eng’g, Inc. v. Aidco, Inc., 959 F.2d 738, 739 (8th Cir.1992); Estate of Witko, 156 F.Supp.2d at 1099; Drayton Enter., 142 F.Supp.2d at 1185. There must be some connection independent of the effects of the tort to justify jurisdiction. Drayton Enter., 142 F.Supp.2d at 1185; see Oriental Trading Co. v. Firetti, 236 F.3d 938, 943 (8th Cir.2001) (emphasizing numerous telephone calls, faxes, and invoices sent to forum state); Finley v. River North Records, Inc., 148 F.3d 913, 915 (8th Cir.1998) (telephone and mail contact with plaintiff in forum state); Dakota Indus. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1391 (8th Cir.1991) (defendant shipped products infringing plaintiffs trademark into the forum state); Estate of Witko, 156 F.Supp.2d at 1099 (defendant sold an alcoholic beverage knowing the name was associated with the forum state and that use of the name on an alcoholic beverage was offensive to plaintiffs); see also Swiss Am. Bank, 274 F.3d at 624 (noting that in Calder the actual tort or injury, not just its consequences or “effects” occurred within the forum).

In Iowa also, more than the effects of a tort is necessary to invoke the jurisdiction of our courts. After citing Calder, the Iowa Supreme Court stated, “The minimum contacts requirements demand contact having to do with the state itself; they are not satisfied from a mere ‘effect’ felt by a plaintiff within his or her state of residence.” Percival v. Bankers Trust Co., 494 N.W.2d 658, 659-60 (Iowa 1993); see also Taylor v. Trans-Action Assocs., Inc., 509 N.W.2d 501, 505 (Iowa Ct.App.1993). In Percival, the plaintiffs claimed the California defendant had tor-tiously interfered with a California trust. The supreme court noted that the defendant had no connection with Iowa, other than the fact that two of the five plaintiffs lived here and were presumably affected by the defendant’s conduct. Percival, 494 N.W.2d at 660. The- court concluded Iowa did not have jurisdiction over the defendant. Id.

The case closest on point to the present case is Drayton Enterprises, where the court summarized the facts as follows:

[Defendant] Dunker worked for Drayton [Enterprises] in North Dakota from August 1996 until August 1997. In that role he was entrusted with trade secrets and other proprietary information, which he had contracted to keep secret. He voluntarily left Drayton in 1997, at which point he signed another contract in North Dakota protecting those trade secrets. He then moved to Minnesota, where he resided for two years. In 1999, Dunker was hired by VAP [Value-Added Products]; he moved to Oklahoma and now performs work similar to what he did for Drayton. Drayton alleged that Dunker has revealed its trade secrets to VAP, and that VAP hired him with the secrets in mind. While Dunker and VAP deny this, there seems to be no argument that if Dunker did reveal any trade secrets to VAP, he did so in Oklahoma after he was hired in 1999.

Drayton Enter., 142 F.Supp.2d at 1183-84.

Drayton Enterprises filed suit against Dunker and VAP, alleging Dunker disclosed trade secrets and violated a confidentiality agreement, and that VAP interfered with this contract and wrongfully obtained trade secrets. The federal court concluded the only direct connection between the litigation filed in North Dakota and the defendants’ actions was that the injury caused by the alleged tort would be felt in North Dakota. Id. at 1184. The court noted Dunker legitimately obtained the information in North Dakota, before VAP was ever involved, making VAP’s contact with North Dakota fortuitous and attenuated. Id. The court also noted that the tort was allegedly committed in Oklahoma, because no tort was committed until Dunker revealed the information in Oklahoma. Id. The court concluded there was no connection between defendants and North Dakota beyond the alleged tort, and this was insufficient because an independent connection in addition to the effects of the tort was necessary to justify jurisdiction. Id. at 1185.

The facts in this case are very similar to those presented in Drayton Enterprises, and the claims raised, breach of a confidentiality agreement, interference with a contract, and trade secret violations, are also very similar. Gerber obtained information during his employment with RAJ in Iowa, long before he had any contact with the Amylum Group. Thus, the Amylum Group did not purposely target Iowa, but it was fortuitous that Gerber’s information was acquired there. Also, if the alleged torts were committed, they were committed in France or Belgium, during Gerber’s employment with the Amylum Group. As noted above, the Amylum Group has no corporate presence in Iowa, and had no business with any entity in Iowa. There was no evidence of telephone, mail, or fax contact by any of the defendants to anyone in Iowa. Defendants did not ship any products into Iowa. Furthermore, there are no allegations defendants engaged in conduct uniquely offensive to Iowans. Thus, we conclude there is no connection between defendants and Iowa, other than the “effects” of the alleged torts. Under the interpretation of Calder found in the Eighth Circuit and Iowa, this is insufficient to justify jurisdiction in Iowa.

D. Interest and Convenience

We turn then to a consideration of Iowa’s interest in the case, the fourth factor in the five-factor test we use to determine personal jurisdiction. See Cascade Lumber, 596 N.W.2d at 92. The fourth and fifth factors do not have as much weight as the first three factors. Id. The fourth factor weighs in favor of plaintiffs because Iowa has an interest in resolving the disputes of its corporate citizens. However, Iowa’s interest in protecting its citizens regarding business matters is not as strong as the State’s interest in other matters. OmniLingua, Inc. v. Great Golf Resorts, 500 N.W.2d 721, 725 (Iowa Ct.App.1993) (comparing the State’s interest in a contractual agreement with its interest in the paternity of a child or insurance policyholders); see also State ex rel. Houk, 586 N.W.2d at 227 (finding Iowa has a substantial interest in recovering child support for child born in Iowa).

We next consider the convenience of the parties, the last factor in the five-factor test. RAI is located in Iowa, but all the other parties are located in France or Belgium. Most of the witnesses are located in Europe, and several speak only French. While RAI could be disadvantaged if this case were held in Europe, Roquette would not be. Additionally, there is a question concerning whether Iowa could compel the attendance of unwilling witnesses and whether a judgment could be enforced, if one is obtained. See In re Marriage of Kimura, 471 N.W.2d 869, 878 (Iowa 1991). Furthermore, we note that courts must exercise great care before exercising personal jurisdiction over foreign nationals. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 115, 107 S.Ct. 1026, 1033-34, 94 L.Ed.2d 92, 106 (1987); Neal v. Janssen, 270 F.3d 328, 333 (6th Cir.2001); Noonan, 135 F.3d at 93. Based on all of these considerations, we determine Iowa is not the most convenient forum for this case.

V. Summary

After carefully considering each of the five factors we deem sufficient to confer jurisdiction in Iowa, we conclude the factors do not weigh in favor of jurisdiction here. We determine the district court erred in its application of the Colder “effects” test. We reverse the decision of the district court, on the ground that Iowa does not have personal jurisdiction, over defendants. Based on our conclusions, we do not separately discuss the issue, of forum non conveniens.

REVERSED.

      . This refers to the "effects” test found in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).

      . In reaching this conclusion, however, we make no findings regarding the relative merits of the case for purposes other than considering the motion to dismiss. Both parties expended considerable effort to present the merits of this matter, but these arguments are irrelevant to our consideration of the motion to dismiss.

      . Evidence was presented of Amylum Group's exports to the United States from January 1998 to November 1999. Between August 1998 and December 1998, Amylum Group had eight shipments, in small amounts, of a substance called sorbogem, which we will assume is related to sorbitol. Six of the shipments were made to Amylum Group's joint .venture partner, SPI Polyols, Inc., in what it described as a buy-back agreement.

      . Although not relevant to our review, we note the negotiations fell through and no sor-bital was shipped to the United States.