In American Int’l Ins. Co. v. Ziabicki Import Co., 2012 WL 3039228 (Mass. Super. Ct. July 5, 2012), a valuable painting was damaged when the nails securing the picture hangers to the wall snapped and the painting fell from the wall. The homeowners’ insurer, as subrogee, sued the picture hangers’ German manufacturer and its Wisconsin-based distributor in Massachusetts Superior Court for negligence, breach of the implied warranty of merchantability (the Massachusetts near-equivalent of strict liability) and violation of Mass. Gen. L. ch. 93A (the Massachusetts unfair and deceptive practices statute), alleging the picture hangers were defectively designed and manufactured.

The manufacturer answered the complaint, asserting lack of personal jurisdiction among its defenses, and expressly reserved its rights to contest jurisdiction. Thereafter, however, the manufacturer cross-claimed against the distributor, answered the latter’s cross-claim, served the plaintiff and distributor with discovery requests, responded to plaintiff’s interrogatories, deposed multiple witnesses and joined in a motion for an order allowing it to inspect the accident scene. After nearly two years of participating in discovery and motion practice relating to the merits, the manufacturer moved for summary judgment based on both the personal jurisdiction defense and the merits.

The court first observed that the manufacturer had “an airtight claim that this Court lacks personal jurisdiction over it unless its actions during the course of this lawsuit waived or forfeited that defense.” The manufacturer had never had any contacts with or presence in Massachusetts – it had never contracted with Massachusetts businesses, maintained an office or employees in Massachusetts, advertised, marketed, sold or shipped products directly to Massachusetts or known or expected that its products might end up there. Nonetheless, the court found the manufacturer had invoked the benefits and protections of Massachusetts’ laws – including procedural rules compelling an adverse party to disclose information not otherwise available – and thus waived its jurisdictional defense when it chose to litigate the case on the merits for nearly two years after asserting the defense. The court also found that plaintiff’s expert’s testimony that the picture hangers and nails were excessively brittle due to defects in design and manufacture presented a genuine issue of material fact on the merits of plaintiff’s claim. Accordingly, the court denied the manufacturer’s motion in its entirety.