The Shiprock District Court reviews a motion to dismiss for a lack of jurisdiction based upon a lack of minimum contacts by the defendant insurance company with the Navajo Nation, finds that it is a motion for summary judgment under the civil rules, and that there are issues of material fact regarding the nature, frequency, and substance of insurance company contacts in or with the Navajo Nation. The court reviews Navajo Nation due process- minimum contacts decisions to guide the parties, and orders an evidentiary hearing on the nature of the defendants’ activities within the Navajo Nation.

IN THE DISTRICT COURT OF THE NAVAJO NATION

JUDICIAL DISTRICT OF SHIPROCK, NAVAJO NATION (NEW MEXICO)

ROSE ANN BENALLY,
individually and as personal representative                 No. SR-CV-277-99-CV
of the Estate of JAMES YAZZIE
and as parent and legal guardian of
SANTANA YAZZIE, JONAH YAZZIE, and
JOSIAH BENALLY,

Plaintiff,

vs.

FARMERS INSURANCE GROUP OF ARIZONA and
JIM HORTON INSURANCE AGENCY, INC.,

Defendant.

2000-SR-DC-001

OPINION AND ORDER

[1] Defendant Farmers Insurance Group of Arizona moves the court, pursuant to Rule 12(i)(3) of the Navajo Rules of Civil Procedure, to dismiss this action for a lack of subject matter jurisdiction. The essential thrust of the motion is that this court lacks jurisdiction over the defendant for a lack of substantial contacts with or within the Navajo Nation. Given that the defendant asserts certain facts, the motion to dismiss becomes a motion for summary judgment. R. 12(c), Nav. R. Civ. P.; see also, R. 12(d) (when the court will consider a motion to dismiss). The court will deny the motion as one for summary judgment, because there are disputed issues of material fact, namely the nature, frequency, and substance of the defendant insurance company’s activities within the Navajo Nation. Despite the existence of unresolved issues of material fact which go to the court’s jurisdiction, the court will conduct an evidentiary hearing on the motion to fully develop the facts. This opinion will guide the parties on what the court expects.

[2] The issue is whether, under the due process clause of the Navajo Nation Bill of Rights, 1 NNC Sec. 3 (1995), the court has jurisdiction over the defendant because it has caused an action to occur "within the territorial jurisdiction of the Navajo Nation." 7 NNC Sec. 253(2). The primary issue is not whether a separate negligence tort occurred within the Navajo Nation, but whether the defendant has taken actions which have caused an injury to occur within our territorial jurisdiction.

[3] The first of three leading decisions on the point is Thompson v. Wayne Lovelady’s Frontier Ford, 1 Navajo Rep. 282, 1 N.L.R. 85 (D. Shiprock, 1978). The issue there was whether this court had subject matter and personal jurisdiction over an action. Id. The plaintiffs were enrolled Navajos and residents of the Navajo Nation, and the defendants were an auto dealership and a bank. Id., 1 Navajo Rep. at 283, 1 N.L.R. at 86. The plaintiffs alleged that the defendants removed the plaintiffs’ vehicle from the Navajo Nation as a repossession contrary to 7 NNC Sec. 307. Id. The personal jurisdiction issue was "whether the Navajo Nation has the power within the standards of due process to assert personal jurisdiction over foreign corporations as a consequence of such corporations’ acts such as the alleged repossession in this case." 1 Navajo Rep. at 288, 1 N.L.R. at 87. The court utilized the federal "minimum contacts" standard and found that the "single act of unlawful repossession perpetrated upon the lands subject to the jurisdiction of the Navajo Tribe is a sufficient ‘contact’ and reasonable basis for the Tribe’s assertion of personal jurisdiction over the defendants within the meaning of due process of law." 1 Navajo Rep. at 288, 1 N.L.R. at 87-88 (citations omitted). It was clear that the defendants caused an action to occur within the Navajo Nation, and that the action caused an injury.

[4] The second applicable Navajo Nation decision is Billie v. Abbott, N.L.R. Supp. 42 (Navajo Nation Sup. Ct. 1988). John Abbott, a Utah official, intercepted federal tax refunds of Navajos living within the Navajo Nation to pay child support obligations under Utah law. Id. The tax refunds were seized to reimburse the State of Utah for Aid to Families with Dependent Children (AFDC) for the plaintiffs’ children. Id., at 43. On the issue of whether Abbott caused an action to occur within the territorial jurisdiction of the Navajo Nation, the Court first established the principle that "a defendant may cause personal injury actionable in Navajo court without ever having set foot on Navajo soil." Id. at 47. The touchstone is whether the person who is sued does an injury within the Navajo Nation. Id. Responding to Abbott’s minimum contacts-due process argument, the Court found that "Abbott has interfered with the domestic relations of Navajos, a subject with strong cultural ties. This has caused personal injury unique to Navajos residing on the reservation. We have just held that this personal injury occurred on the Navajo Reservation, thus, Abbott has made ‘minimum contact’ with the Navajo Nation to satisfy the requirement of Navajo due process under the ICRA [Indian Civil Rights Act] and under the NBR" [Navajo Bill of Rights]. Id. at 48.

[5] The third decision which applies to this ruling is Sells v. Espil, N.L.R. Supp. 128 (Navajo Nation Sup. Ct. 1990). Defendants Louis and Peter Espil were the sole shareholders of the Espil Sheep Company, an Arizona corporation. Id. They owned the Peaks Ranch, which was located near the San Francisco Peaks north of Flagstaff, Arizona, outside the territorial boundaries of the Navajo Nation. Id. They decided to sell the ranch, and on the advice and with they help of Warren Pule, they contacted Cato Sells, a Navajo, who had contacts within the Navajo Nation Government, and asked Sells to help them sell the ranch to the Navajo Nation. Id. Sells then approached "local officials" at Tuba City, Navajo Nation about such a deal and got "a favorable response." Id. Sells and the Espils then entered into a brokerage contract at Farmington, New Mexico, outside the Navajo Nation. Id. Sells then arranged three meetings with Navajo Nation officials regarding the land sale, and Sells and Pyle had three meetings in Window Rock, Navajo Nation (Arizona). Id. at 129. The Espils made four trips to the Navajo Nation to negotiate the land deal, had one trip to tour Navajo Agricultural Products Industry land during discussions of the ranch sale the negotiation of the brokerage agreement, and they made telephone calls to Navajo Nation officials. Id. Pyle and Sells made several trips to the Navajo Nation to facilitate the sale. Id.

[6] The Navajo Nation bought the Peaks Ranch for over six million dollars on August 6, 1986, and the Espils refused to pay Sells and Pyle for their services under the brokerage agreement. Id. When they brought an action in the Window Rock District Court, it dismissed the case for a lack of personal jurisdiction over the Espils. Id.

[7] The Court began its analysis, as does this court, with the statutory provision that the Navajo Nation courts have jurisdiction over "all civil actions in which the defendant is a resident of Navajo Indian Country, or has caused an action to occur within the territorial jurisdiction over the Navajo Nation. Id. (7 NNC Sec. 253). Addressing the due process issue, the Court said that although "the cause of action may have accrued outside the boundaries of the Navajo Nation," "nothing in Navajo case law says that the place of injury is the only factor to be considered in determining minimum contacts." Id. at 130. The Navajo Nation courts have jurisdiction over a foreign corporation doing business within the Navajo Nation even though the cause of action arose elsewhere.  Id. (Arizona Supreme Court citation omitted). The Court then set its minimum contacts guidelines: "all of a defendant’s forum-related activity shall count as minimum contacts; however, the greater the connection between the cause of action and activities, the less substantial shall be the necessary contacts. Where the plaintiff’s cause of action is totally unrelated to the defendant’s contacts with the Navajo Nation, substantial contacts will be necessary for the assertion of jurisdiction. Where there is a reasonable relationship between the cause of action and the defendant’s contacts, jurisdiction will be appropriate with less substantial contacts." Id. (footnotes omitted). The Court looked at Louis Espil’s three trips and Peter Espil’s one trip to Window Rock and Sells and Pyle’s meetings. Id. The Court found that given those activities, the Espils should have "‘reasonably anticipate[d] being haled into" the Navajo Nation courts to adjudicate a dispute over the brokerage agreements or the sale of land to the Navajo Nation. Id. at 130-131 (brackets in the original). The Navajo Nation’s interest in the dispute was the fact that plaintiff Sells was a Navajo, the negotiations of the oral brokerage contract took place on Navajo Agricultural Industry land, and the Espils allegedly engaged the services of Pyle and Sells to take action within the Navajo Nation on the Espils’ behalf. Id. Those were sufficient contacts to justify jurisdiction.

[8] Both parties make several assertions about the kinds and nature of contacts that Farmers Insurance Group of Arizona, acting through the Jim Horton Insurance Agency, may or may not have had with the Navajo Nation. However, these cases illustrate that the issue of minimum contacts to sustain jurisdiction as a matter of due process of law is highly factual. This court does not have sufficient facts to rule upon the defendant Farmers Insurance Group motion to dismiss.

[9] The court also observes that whether or not Farmers Insurance, through the Jim Horton Insurance Agency or otherwise, has ongoing contacts with Navajo insureds and a pattern and practice of activities within the Navajo Nation relating to insurance sales and claims adjustment, may be relevant to the issues before the court.

[10] Accordingly, the court will conduct an evidentiary hearing on the defendant’s motion at the courthouse in Shiprock, Navajo Nation (New Mexico) on the 19^th day of April, 2000, commencing at the hour of 11:00 a..m. At that time, the defendant will present its evidence in support of its motion to dismiss, and the plaintiff may also present her evidence in support of her contention that there have been sufficient minimum contacts within the Navajo Nation by the defendant or its agents to sustain jurisdiction. Following the hearing, the parties shall have twenty (20) days in which to submit simultaneous briefs on the issue. The court finds that the primary issue is personal jurisdiction, and that "subject matter jurisdiction" under federal Indian affairs law is a secondary consideration. The parties may also brief that issue following the hearing.

Dated this 20th day of March, 2000

Raymond A. Begaye

District Judge