Design Professionals May be Subject to the Jurisdiction of NH Courts Without Ever Setting Foot in the State

The New Hampshire Supreme Court’s recent decision in Kimball Union Academy v. Genovesi, Case No. 2012-492 (N.H. June 28, 2013) sets forth an expansive view of personal jurisdiction in New Hampshire, which could subject out-of-state design professionals to the jurisdiction of New Hampshire courts for work they perform even if they never enter into any contracts in New Hampshire or perform any work in the state.

The facts as alleged by Kimball Union Academy were that it entered into a contract with JDE, Inc, a Florida corporation, to design and build a field house facility on its campus.  Pursuant to the contract, JDE was required to supply an architect and an engineer, both licensed in New Hampshire, for the project’s design.  Instead, JDE apparently hired Genovesi, a professional engineer residing in New Jersey who was not licensed in New Hampshire, to perform certain design work for the footings and foundation system of the field house.  Kimball Union alleged that there were a number of problems with the design work prepared by JDE and the professional engineer, which prompted Kimball Union to terminate its contract with JDE and commence litigation.

The professional engineer argued that the case against him should be dismissed because he lacked the requisite contacts with New Hampshire to allow New Hampshire courts to exercise jurisdiction over him.  Specifically, he alleged (1) all the work he performed on the project took place in his office in New Jersey, (2) he did not transact any business in New Hampshire because his involvement was solely with JDE, a Florida corporation, and its president, a Pennsylvania resident, and (3) he lacked any other contacts justifying jurisdiction because he never resided in New Hampshire, never owned any real property in New Hampshire, never advertised in New Hampshire, never had any business interests in New Hampshire, and had never even been in New Hampshire since a ski vacation more than thirty years before the circumstances of the case arose.

The New Hampshire Supreme Court rejected these arguments.  The Court concluded that the professional engineer had sufficient contacts with New Hampshire to allow New Hampshire courts to assert jurisdiction over him because he was aware that the plans he was developing would be utilized in constructing a building in New Hampshire. Further, the Court concluded that the evidence showed that an integral part of his work was to ensure that the design of the building would fit the specifications of the location in New Hampshire. Accordingly, the Court concluded that Kimball Union could proceed with its action against him in New Hampshire.

The New Hampshire Supreme Court’s ruling should put all design professionals on notice that they may be subject to the jurisdiction of New Hampshire courts for work they perform on projects in the state even if (1) they are not licensed in the state, (2) do not contract directly with any New Hampshire entities, and (3) perform all of their work on the project outside the state.

For more information on professional liability matters, contact Attorney Nathan Fennessy at 603.410.1500 or a member of Preti's Professional Liability Practice Group.