Appeal from the United States District Court for the Eastern District of Wisconsin. No. 76 C 237 - Robert W. Warren, Judge.
Fairchild, Chief Judge, Wood, Circuit Judge, and Howard T. Markey, Chief Judge.*fn1 Fairchild, Chief Judge, concurring in part, dissenting in part.
On April 20, 1973, appellant Raymond Leannais was injured while operating a coil slitter machine incident to his employment at Fullerton Metals Company in Milwaukee, Wisconsin.
In this diversity suit, Leannais and his wife (Leannais) sought damages from Cincinnati, Inc., and Cincinnati-Forte Co., (Cincinnati), the alleged corporate successors to the original manufacturer of the machine. The complaint alleges strict liability, negligence in the design and manufacture of the machine, and failure to warn potential users after serious injuries had occurred. In view of affidavits filed by both parties, the court granted summary judgment for Cincinnati.*fn2 We reverse and remand.
The machine on which Leannais was injured had been manufactured by Forte Equipment Company (Forte) and sold to Fullerton in late 1964. In December, 1967, Forte sold its assets to Cincinnati, Inc., an Ohio corporation, for cash and certain employment agreements. Cincinnati, Inc., established a subsidiary named Cincinnati-Forte to accept the Forte assets. The subsidiary was dissolved in 1973 and the assets of Cincinnati-Forte were purchased by Cincinnati, Inc.
In the Forte-Cincinnati, Inc. agreement, Cincinnati expressly limited its liability for personal injury caused by Forte for a period of five years from the December 6, 1967 closing date of the contract, and agreed to use its best efforts to secure a specific amount of insurance against such claims during that time.*fn3 No other liability for personal injury claims was assumed. Cincinnati was first notified of Leannais' injury in July, 1975, more than seven years after the acquisition of Forte's assets.
The issue before us is whether Cincinnati can be held liable for appellant's injury (1) under "corporate merger" or "continuation" theories, (2) under a "product line" theory of strict tort liability, or (3) because it negligently failed to warn of the potentially dangerous condition of the machines. The parties agree that Wisconsin law applies. That state being the situs of the injury and the residence of Leannais, it has the principal interest of any state in the rules of law to be applied.
"MERGER" OR "CONTINUATION"
The general rule in the majority of American jurisdictions, including Wisconsin, is that a corporation which purchases the assets of another corporation does not succeed to the liabilities of the selling corporation. Bazan v. Kux Machine Co., 358 F. Supp. 1250 (E.D. Wis. 1973). Here, Cincinnati had no part in the design, manufacture, sale or distribution of the allegedly defective machine, and the general rule accords with the fundamental principle of justice and fairness, under which the law imposes responsibility for one's own act and not for the totally independent acts of others. There are, however, four well-recognized exceptions to the general rule under which liability may be imposed on a purchasing corporation: (1) when the purchasing corporation expressly or impliedly agreed to assume the selling corporation's liability; (2) when the transaction amounts to a consolidation or merger of the purchaser and seller corporations; (3) when the purchaser corporation is merely a continuation of the seller corporation; or (4) when the transaction is entered into fraudulently to escape liability for such obligations. Forest Laboratories, Inc. v. Pillsbury Co., 452 F.2d 621 (7th Cir. 1971), Bazan v. Kux Machine Co., supra.
Leannais contends that the transaction here falls under exceptions (2) or (3), i.e., that there was a "merger" of the two corporations or that Cincinnati is a "mere continuation" of Forte. A merger, however, involves the actual absorption of one corporation into another, with the former losing its existence as a separate corporate entity. That did not happen here. When the seller corporation retains its existence while parting with its assets, a "de facto merger" may be found if the consideration given by the purchaser corporation be shares of its own stock. Bazan v. Kux Machine Co., supra, McKee v. Harris-Seybold Co., 109 N.J. Super 555, 264 A.2d 98 (1970).*fn4 Here, no stock in Cincinnati or in Cincinnati-Forte was transferred as consideration for Forte's assets.*fn5 A "consolidation" occurs when two combining corporations are dissolved and lose their identity in a new corporate entity. Forest Laboratories, Inc. v. Pillsbury Co., supra. Cincinnati maintained its distinct corporate identity from a time prior to and throughout the transactions herein to the present day. The key element of a "continuation" is a common identity of the officers, directors and stockholders in the selling and purchasing corporations. Unlike the situation in which a new corporation merely takes over the assets of the selling corporation under the old management,*fn6 the management of Forte was not carried over to Cincinnati. Nor did any shareholder of either corporation become an owner, director, or officer of the other.
We conclude, therefore, that the purchase of Forte's assets was not such as to bring it within either the "merger" or the "mere continuation" exception to the general rule. Cincinnati did not impliedly assume Forte's liability and its express assumption in paragraph 11(q) of the Purchase Agreement was limited to the five years stated. No allegation of fraudulent conduct having been made, the transaction must be viewed as a bona fide, arm's length bargain, valid under Wisconsin law. It is thus clear that Cincinnati is ...