* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-50942

Summary Calendar

_______________

LIFE PARTNERS, INC.,

Plaintiff-Appellant,

VERSUS

ZURICH AUSTRALIA LIMITED,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(W-98-CV-255)

_________________________

March 12, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Life Partners, Inc. (“Life Partners”), sued Zurich Australia

Limited for proceeds on a life insurance policy it had purchased

from decedent Peter Wilson. The district court dismissed the

matter on the ground that there was no in personam jurisdiction

over Zurich. Finding no error, we affirm.
2

I.

In 1987, Wilson purchased a life insurance policy from Zurich.

Wilson was a citizen and resident of Australia, and Zurich was an

Australian company headquartered there. Zurich had no subsidiaries

incorporated or qualified to do business in the United States.

At some point, Wilson moved to Texas, and in 1994, while still

living there, sold the policy to Life Partners, a viatical

settlement company, incorporated and domiciled in Texas, that

purchases life insurance policies from terminally ill

policyholders. As per Australian law, Zurich did not refuse this

transfer. Shortly thereafter, Wilson moved back to Australia and

died in 1995. Because of alleged omissions in Wilson’s insurance

application, Zurich has refused to honor the policy.

II.

The parties do not dispute the controlling law or the district

court’s formulation of it. Where the parties part company is over

the application of the law to the facts. Because none of the

operative facts is in dispute, we review de novo. See Felch v.

Transportes Lar-Mex S.A. de C.V., 92 F.3d 320, 324 (5th Cir. 1996).

A.

In personam jurisdiction requires (1) that the forum state’s

long arm statute must authorize jurisdiction over the party and

(2) that exercise of jurisdiction must comport with the

requirements of the Due Process Clause. Stuart v. Spademan, 772
3

F.2d 1185, 1189 (5th Cir. 1985). Because Texas's long arm statute

reaches as far as is constitutionally allowed, see Bearry v. Beech

Aircraft Corp., 818 F.2d 370, 373 (5th Cir. 1987), our inquiry is

limited to whether the requirements of the Constitution have been

met, see Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 777 (5th

Cir. 1986). This is the plaintiff's burden. Rittenhouse v. Mabry,

832 F.2d 1380, 1382 (5th Cir. 1987).

There are two species of in personam jurisdiction consistent

with due process: “specific jurisdiction” and “general

jurisdiction.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477-

78 (1985); International Shoe Co. v. Washington, 326 U.S. 310, 316

(1945). Specific jurisdiction exists if the claim arises out of

defendant’s purposeful contacts with the forum state and the

exercise of specific jurisdiction over the defendant is fair and

reasonable. Burger King, 471 U.S. at 477-78. These requirements

ensure that a defendant is on notice, or had “fair warning,” that

he can be sued in the forum state based on his contacts with it.

Id. It is not the number of contacts that is determinative, but

the nature of them. Bean Dredging Corp. v. Dredge Tech. Corp.,

744 F.2d 1081, 1083 (5th Cir. 1984).

Zurich came into contact with Texas solely through Wilson’s

unilateral actions. Wilson purchased his policy while still living

in Australia but subsequently moved to Texas. While in Texas, he

sold the policy to Life Partners, a Texas corporation. Zurich’s

acquiescence to this Texas sale was mandated as a matter of

Australian law and serves as Zurich’s only contact with Texas. 
 

1 Life Partners's strongest case in support of its specific jurisdiction

argument is McGee v. International Life Ins. Co., 355 U.S. 220 (1957), in which

the Court, noting the “trend . . . [of] expanding the permissible scope of state

jurisdiction over foreign corporations” because of “the fundamental

transformation of our national economy,” permitted California to exercise

jurisdiction over a Texas insurance company whose only contacts with California

were through the presence of the insured. See McGee, 355 U.S. at 222-23. Two

significant differences between McGee and the instant case make McGee

distinguishable: (1) In McGee, the out-of-state defendant affirmatively sought

out and assumed responsibility for the insurance policy in question and was not

brought into contact with the forum state merely through the unilateral actions

of another; and (2) in McGee, the defendant was incorporated in another state and

thus had ties to the United States; Zurich conversely has no ties to this country

and is incorporated in a foreign nation. For the importance of this second

distinction, see Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 114

(1986).

4

In Hanson v. Denckla, 357 U.S. 235, 253 (1958), the Court

plainly addressed the situation before us when it held:

The unilateral activity of those who claim some

relationship with a nonresident defendant cannot satisfy

the requirement of contact with the forum State. The

application of that rule will vary with the quality and

nature of the defendant’s activity, but it is essential

in each case that there be some act by which the

defendant purposefully avails itself of the privilege of

conducting activities within the forum state, thus

invoking the benefits and protection of its laws.

Later, the Court elaborated that “[t]he placement of a product into

the stream of commerce, without more, is not an act of the

defendant purposefully directed toward the forum State.” Asahi

Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (1986).

Because Zurich did not “purposefully avail” itself of Texas's

benefits, but rather was introduced to Texas by Wilson's

unilateral, unanticipated actions, an exercise of specific

jurisdiction over Zurich would have been unconstitutional. See

id.1

“General jurisdiction” exists when a defendant's contacts with

the forum state are sufficiently “continuous and systematic.”
 

2 By “sister corporations” we refer to other subsidiaries of Zurich’s

parent.

5

Helicopteros Nationales de Columbia, S.A. v. Hall, 466 U.S. 408,

415 (1984). Life Partners's only evidence in this regard concerns

the activities of Zurich’s parent and sister2 corporations, but no

amount of contacts between these corporations and Texas can give

rise to Texas's jurisdiction over Zurich, because “[s]o long as a

parent and subsidiary maintain separate and distinct corporate

entities, the presence of one in a forum state may not be

attributed to the other.” Hargrave v. Fibreboard Corp., 710 F.2d

1154, 1160 (5th Cir. 1983). Life Partners has offered no “proof of

control by the parent over the internal business operations and

affairs of the subsidiary,” a requirement for the imputation of a

parent’s contacts with the forum state to its subsidiary. See

Hargrave, 710 F.2d at 1160. As a result, the record is devoid of

any basis for finding general jurisdiction.

AFFIRMED.