FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-1918

_____________________________

NORA LAFRENIERE, Vice 

President and General Counsel 

of Otis Elevator Company,

Appellant,

v.

CATHERINE CRAIG-MYERS,

Individually and as Personal 

Representative of the Estate of 

Robert Myers,

Appellee.

_____________________________

On appeal from the Circuit Court for Leon County.

Karen Gievers, Judge.

December 28, 2018

B.L. THOMAS, C.J.

The trial court’s non-final order denied Appellant’s motion to 

dismiss the amended complaint. Appellant argues that the 

corporate shield doctrine bars the trial court from exercising 

personal jurisdiction over a nonresident corporate officer acting in 

a corporate capacity, and that the amended complaint fails to 

allege a basis for personal jurisdiction under Florida’s long-arm 

statute sufficient to pierce that corporate shield. We have 

jurisdiction under Florida Rule of Appellate Procedure

9.130(a)(3)(C)(i). We hold that the trial court erred in denying 

Appellant’s motion to dismiss, because Appellant was acting in a 
2

corporate capacity at all relevant times, and no valid exception to 

the corporate shield doctrine applies in this case.

Robert Myers, an employee of Otis Elevator Company, was 

tragically killed while conducting an elevator inspection and 

repair. Separate investigations were conducted by the Tallahassee 

Police Department and the Occupational Safety and Health 

Administration (“OSHA”). OSHA issued four citations to Otis 

Elevator Company for regulatory violations classified as “serious.”

Appellee brought a wrongful death action against Otis 

Elevator Company and Appellant, alleging that jurisdiction was 

invoked pursuant to section 768.16, Florida Statutes, “the Florida 

Wrongful Death Act.” Count II of the amended complaint asserted

a “Cause of Action for Wrongful Death Damages Against 

[Appellant] Arising From Criminal Acts Exception to Worker’s 

Compensation Employer/Manager Immunity Provided in Section 

440.11(1)(b)2, Florida Statutes.” Appellee’s amended complaint 

alleged that the Occupational Health and Safety Act of 1970 

requires elevator owners to have their technicians disable 

elevators using “lockout” or “tagout” procedures before 

commencing repairs, but that Otis Elevator Company has a policy 

of requiring its technicians to enter elevator shafts for up to 

15 minutes without disabling or tagging out the elevators. The 

amended complaint described prior instances where OSHA issued 

citations to Otis Elevator Company for “serious” violations of its 

elevator regulations.

The amended complaint further alleged that “in the course 

and scope of her employment as General Counsel and as corporate 

officer” of Otis Elevator Company, Appellant closely managed, 

directed, supervised, monitored and controlled in-house and 

retained counsel, including the following alleged actions taken by 

legal counsel at Appellant’s express direction:

a. actions purposefully taken to intentionally conceal and 

prevent disclosure of the OSHA citations against 

Defendant Otis to the public and Otis service technician 

employees; 

b. actions purposefully taken to contest and appeal OSHA 

citations for the intentional benefit of delay, concealment, 
3

misrepresentation and non-disclosure of the . . . risks of 

serious injury and death to Otis service technician 

employees from their continued use of the Otis “15 

Minute Rule”; 

c. actions purposefully taken to contest the OSHA 

citations specifically to prevent subsequent issuance by 

OSHA of “REPEAT” or “Willful” citations for repeat 

conduct in subsequent cases . . . . “Repeat” OSHA 

violations are issued for substantially similar violations 

occurring within the past three years; 

d. actions purposefully taken to conceal from the public 

and Otis service technician employees that Otis was 

continuously and purposefully subjecting its service 

technician employees to continued enforcement of its “15 

Minute Rule” with conscious disregard to the . . . risks of 

serious injury and death. 

The amended complaint further alleged that “in the course 

and scope of her employment,” Appellant “did intentionally, 

consciously and deliberately aid, abet, counsel, command, induce 

and procure Defendant Otis Elevator Company managers, 

supervisors, and service technician employees to intentionally and 

willfully violate” five OSHA provisions, and that she “consciously 

intended to cause and caus[ed] Otis officers, managers, supervisors 

and employees to violate” the applicable OSHA regulations. 

Appellee alleged that the decedent’s death was a direct and 

proximate result of Appellant’s conduct.

Further, Appellee alleged that Otis Elevator Company 

intentionally concealed its contributions to the deaths of its 

employees and misrepresented to its employees that the previous 

deaths were solely attributable to employee error, despite federal 

courts having ruled that the company’s policies and 15-minute rule 

violated OSHA regulations. Appellee alleged that the company 

“told its employees to continue to follow the deadly dangerous Otis 

15-minute rule” and “continued to encourage its employees to 

intentionally violate OSHA regulations” despite knowing of the 

court rulings. These allegations placed the blame squarely on Otis 

Elevator Company; Appellant was not mentioned.
4

Appellant moved to dismiss the amended complaint for lack of 

personal jurisdiction. She attached an affidavit in support of her 

motion, attesting that she does not exercise supervisory control 

over Otis North America’s local branch offices. She further stated

that although she “may have limited contact on occasion” with Otis 

North America’s outside legal counsel, it is the company’s in-house 

counsel, not Appellant, who directly supervises and controls

outside legal counsel.

The trial court held a non-evidentiary hearing on Appellant’s 

motion to dismiss. Appellant argued that Appellee submitted no 

competing evidence as to jurisdiction; Appellee argued that no 

competing affidavit or evidentiary hearing was necessary, because 

Appellant’s affidavit failed to refute the alleged bases for personal 

jurisdiction. The trial court denied Appellant’s motion to dismiss. 

This interlocutory appeal follows.

Analysis

An order denying a motion to dismiss for lack of personal 

jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So. 2d 

1252, 1256 (Fla. 2002). The facts are to be derived “from the 

affidavits in support of the motion to dismiss, and the transcripts 

and records submitted in opposition to the motion to dismiss.” Id.

at 1254. To determine if personal jurisdiction may be exercised

over a nonresident defendant, “a court must determine whether 

sufficient jurisdictional facts are alleged to bring the action within 

the ambit of Florida’s long-arm statute.” Kitroser v. Hurt, 85 

So. 3d 1084, 1087 (Fla. 2012). Florida’s long-arm statute is “to be 

strictly construed, in order to guarantee compliance with due 

process requirements.” Aetna Life & Cas. Co. v. Therm-O-Disc, 

Inc., 488 So. 2d 83, 87 (Fla. 1st DCA 1986).

Here, neither the amended complaint nor the trial court’s 

order specify which subsection of the long-arm statute provides a 

basis for jurisdiction. However, even if the appealed order does not 

state the basis for its decision, personal jurisdiction may be derived 

from the facts alleged in the complaint. Allerton v. State Dep’t of 

Ins., 635 So. 2d 36, 39 (Fla. 1st DCA 1994).

Florida’s long-arm statute contains two provisions that 

provide a basis for personal jurisdiction – specific jurisdiction and 
5

general jurisdiction. Appellee admits that the amended complaint 

does not support general jurisdiction. 

Section 48.193(1)(a), Florida Statutes, confers specific 

jurisdiction over

(1)(a) A person, whether or not a citizen or resident of this 

state, who personally or through an agent does any of the 

acts enumerated in this subsection thereby submits 

himself or herself and, if he or she is a natural person, his 

or her personal representative to the jurisdiction of the 

courts of this state for any cause of action arising from 

any of the following acts:

1. Operating, conducting, engaging in, or carrying on a 

business or business venture in this state or having an 

office or agency in this state.

2. Committing a tortious act within this state.[1]

I. Whether the amended complaint alleged a

cause of action arising from a tort committed in Florida

The corporate shield doctrine provides that personal 

jurisdiction cannot be exercised over a nonresident corporate 

employee sued individually for acts performed in a corporate 

capacity. Doe v. Thompson, 620 So. 2d 1004, 1005 (Fla. 1993). 

“The rationale of the doctrine is ‘the notion that it is unfair to force 

an individual to defend a suit brought against him personally in a 

forum with which his only relevant contacts are acts performed not 

for his own benefit but for the benefit of his employer.’” Id. at 1006 

(quoting Estabrook v. Wetmore, 129 N.H. 520, 529 (N.H. 1987)). In 

Doe, the plaintiff brought a gross negligence suit against a chief 

executive officer, alleging the officer failed to take adequate 

measures to prevent sexual assault. 620 So. 2d at 1004. The 

supreme court held that personal jurisdiction was not established, 

because “[the defendant’s] allegedly negligent actions are not 

 1 Section 48.193(1), Florida Statutes, enumerates other bases 

for specific jurisdiction, but only subsections (a)1. and (a)2. are 

relevant here.
6

alleged to have been taken outside his duties as [the corporation]’s 

president and chief executive officer; rather, [the plaintiff] alleges 

that he was acting within the scope of his employment.” Id. at 

1006.

Although the corporate shield doctrine generally insulates 

any nonresident corporate officer acting on behalf of his employer, 

an exception exists “[w]here an individual, nonresident defendant 

commits negligent acts in Florida, whether on behalf of a corporate 

employer or not[.]” Kitroser, 85 So. 3d at 1090 (emphasis added). 

In Kitroser, the complaint alleged that “while the [corporate] 

employees were personally in Florida, each engaged in some form 

of negligent conduct, either by training or supervision of [the 

employee] or both, which contributed to [the decedent]’s death.” 

Id. at 1089. Because the torts were allegedly committed within the 

state, the supreme court held that “[t]he corporate shield doctrine, 

therefore, is inapplicable and does not exclude the [corporate] 

employees from the exercise of personal jurisdiction by Florida 

courts.” Id. The supreme court distinguished Doe, reasoning that 

in that case, the defendant’s “out-of-state activities alone did not 

form a predicate for in-state jurisdiction.” Id. at 1089. The court 

reasoned that “[t]o hold otherwise would be tantamount to 

providing corporate employees with a form of diplomatic 

immunity.” Id. at 1090.

Here, all pertinent paragraphs in Appellee’s amended 

complaint alleged that Appellant acted “in the course and scope of 

her employment and as corporate officer.” Thus, the corporate 

shield doctrine bars the exercise of personal jurisdiction, unless 

facts alleged in the amended complaint show that Appellant 

committed a tort in Florida. Id. at 1090.

The amended complaint alleged that Appellant “routinely 

visited and continues to visit Florida . . . in her role as a corporate 

Vice President of Otis and as General Counsel of Otis,” and that 

she is the Principal on a current contract between Otis Elevator 

and the Board of County Commissioners in Miami-Dade. In a 

section titled Parties, the amended complaint alleged that “while 

physically located inside and outside of Florida,” Appellant 

communicated with outside counsel headquartered in Florida 
7

regarding the legal representation of Otis Elevator in various legal 

matters, including cases of elevator technician deaths. 

Although these allegations plainly assert that Appellant 

visited Florida throughout a span of nine years, none of the 

allegations suggest that she committed a tort while in the forum 

state. Although Count II (the sole cause of action against 

Appellant) alleges that Appellant violated Titles 18 and 29 of the 

United States Code by aiding, abetting and directing Otis 

employees to commit OSHA violations, nowhere is it alleged that 

she was in Florida during the alleged actions. 

Although the exception for committing a tort “in Florida” 

generally requires a defendant’s physical presence, the exception 

may also encompass alleged tortious acts committed outside of 

Florida, if those acts involved communication directed into Florida 

for the purpose of committing a fraud, slander, or some other 

intentional tort. See Allerton, 635 So. 2d at 39. In Allerton, the 

defendant was an investment advisor sued for allegedly 

orchestrating financial schemes. The defendant moved to dismiss 

the complaint, arguing that the corporate shield doctrine insulated 

him “because he was acting in an agency capacity for his 

employer.” 635 So. 2d at 39. This Court held that “the facts as 

alleged in the complaint preclude [the defendant]’s reliance upon 

the ‘corporate shield doctrine[.]’” Id. at 37. The basis for this 

holding was that the complaint alleged intentional tortious 

conduct “aimed at a Florida resident,” and “[t]he quality and 

nature of [the defendant’s] actions were not so ‘random, fortuitous 

or attenuated’ that [he] could not reasonably anticipate being 

haled into court in Florida.” Id. at 40 (quoting Burger King Corp. 

v. Rudzewicz, 471 U.S. 462, 486 (1985)). See also State, Office of 

Attorney Gen., Dep’t of Legal Affairs v. Wyndham Int’l, Inc., 869 

So. 2d 592, 597 (Fla. 1st DCA 2004) (holding that corporate shield 

doctrine protects against “untargeted negligence” but not against 

“intentional tortious acts expressly aimed at the forum state.” 

(quoting Doe, 620 So. 2d at 1006 n.1)).

In Rensin v. State, Office of Attorney General, Department of 

Legal Affairs, the complaint alleged that the defendant himself 

falsely advertised in Florida, solicited business in Florida, and 

breached contracts with Florida residents; these allegations 
8

satisfied the plaintiff’s initial burden to assert a basis for personal

jurisdiction. 18 So. 3d 572, 575 (Fla. 1st DCA 2009). This Court

elaborated on the intentional-tort exception:

In each of [the] cases where jurisdiction was found, 

the plaintiff produced evidence of the specific conduct on 

the part of the corporate officer that constituted a fraud 

or intentional tort. In each case, the nonresident 

corporate officer personally and intentionally engaged in 

the tortious conduct and the specific conduct of the 

nonresident corporate officer was calculated to inflict a 

direct injury upon a resident of Florida.

Id. at 575-76. Thus, the conduct alleged must consist of intentional 

and tortious acts “expressly aimed at” Florida, with knowledge by 

the defendant that it “would have a potentially devastating 

impact” upon the victim. Calder v. Jones, 465 U.S. 783, 783-84 

(1984); see also Rensin, 18 So. 3d at 576 (“[T]he specific conduct of 

the nonresident corporate officer was calculated to inflict a direct 

injury upon a resident of Florida.”); Goldberg v. United States, 

2014 WL 2573060 at *1, 5 (S.D. Fla. 2014) (“Although Goldberg 

alleges more than ‘untargeted negligence,’ he does not allege, 

argue, nor submit evidence that the [defendants’] conduct was 

expressly aimed at Goldberg or would have a potentially 

devastating impact upon Goldberg.”).

The threshold question raised is whether the complaint 

sufficiently states a cause of action for an intentional tort. See

Wendt, 822 So. 2d at 1260; Klayman v. Judicial Watch, Inc., 2013 

WL 4780139 at *1, 5 (Sept. 5, 2013) (“The Court’s consideration of 

whether personal jurisdiction exists . . . must be undertaken in the 

light of the claims presented, and the Court should therefore first 

determine whether the Amended Complaint states any claim for 

relief against the individual defendants, and if so, on what 

theories.”); 8100 R.R. Ave. Realty Tr. v. R.W. Tansill Contr. Co., 

638 So. 2d 149, 151 (Fla. 4th DCA 1994) (“[T]he sole basis for 

jurisdiction is that the [appellant] committed a tort in Florida. . . . 

[W]e must of necessity determine whether [the complaint] states a 

cause of action in tort, in order to determine jurisdiction.”).

The sole cause of action against Appellant is a claim for 

“Wrongful Death Damages Against [Appellant] Arising From 
9

Criminal Acts Exception to Workers’ Compensation 

Employer/Manager Immunity provided in Section 440.11(1)(b)2, 

Florida Statutes.” Section 440.11(1)(b), Florida Statutes, provides 

that workers’ compensation is the exclusive remedy in place of all 

other liability, except as follows: 

(b) When an employer commits an intentional tort that 

causes the injury or death of the employee. For purposes 

of this paragraph, an employer’s actions shall be deemed 

to constitute an intentional tort and not an accident only 

when the employee proves, by clear and convincing 

evidence, that:

1. The employer deliberately intended to injure the 

employee; or

2. The employer engaged in conduct that the employer 

knew, based on prior similar accidents or on explicit 

warnings specifically identifying a known danger, was 

virtually certain to result in injury or death to the 

employee, and the employee was not aware of the risk 

because the danger was not apparent and the employer 

deliberately concealed or misrepresented the danger so as 

to prevent the employee from exercising informed 

judgment about whether to perform the work.

(Emphasis added). District courts have discussed the high 

standard of virtual certainty, stating that to reach this level, “‘a 

plaintiff must show that a given danger will result in an accident 

every – or almost every – time.’” R.L. Haines Constr., LLC v. 

Santamaria, 161 So. 3d 528, 531 (Fla. 5th DCA 2014) (quoting List 

Indus., Inc. v. Dalien, 107 So. 3d 470, 471 (Fla. 4th DCA 2013)). 

The conduct alleged in the complaint was not “virtually 

certain to result” in death or injury. Without virtual certainty, the 

allegations in the amended complaint do not sufficiently state a 

cause of action alleging an intentional tort as defined in the 

workers’ compensation statute. Cf. Santamaria, 161 So. 3d at 531.

Appellee argues that its amended complaint alleged conduct 

by Appellant that amounted to a first-degree misdemeanor, 

thereby removing workers’ compensation exclusivity as to 
10

Appellant. See § 440.11(1)(b), Fla. Stat. However, section 

440.11(1)(b) does not declare that criminal conduct by a corporate 

officer constitutes an intentional tort; it only states that such 

conduct, if amounting to a first-degree misdemeanor, removes the 

immunities provided by the workers’ compensation statute. See 

id. The question before us is whether Appellant is alleged to have 

committed an intentional tort sufficient to overcome the corporate 

shield doctrine, not whether Appellant is protected by workers’ 

compensation immunities. Because the amended complaint does 

not allege that the conduct by Otis Elevator Company was 

virtually certain to result in injury, it cannot be said that 

Appellant was a principal to an intentional tort as defined by the 

workers’ compensation statute.

Appellee argues that the amended complaint also alleged

fraud intentionally and expressly directed into Florida, thereby 

alleging an intentional tort sufficient to pierce the corporate shield. 

However, there is no fraud count in the complaint; in fact, the word 

fraud is never mentioned in the cause of action against Appellant 

or in the general allegations. See 8100 R.R. Ave., 638 So. 2d at 151; 

see also Reina v. Gingerale Corp., 472 So. 2d 530, 531 (Fla. 3d DCA 

1985) (“facts constituting fraud must be clearly stated”); A.S.J. 

Drugs, Inc. v. Berkowitz, 459 So. 2d 348, 349 (Fla. 4th DCA 1984)

(holding that fraud requires a knowingly false statement, an intent 

that it be acted on, and detrimental reliance);

Fla. R. Civ. P. 1.120(b) (describing Florida’s heightened pleading 

requirements for fraud actions).

The amended complaint alleged that Otis Elevator Company 

knowingly made false statements to its employees and the public 

by stating that the company “stands behind its policies and 

procedures with respect to employee safety and believes they are 

consistent with applicable OSHA regulations.” Although the 

amended complaint alleged that Appellant controlled the actions 

of retained legal counsel and supervisors, it does not allege that 

Appellant personally made any false statements or that she 

instructed anyone else to make a false statement; the complaint 

only alleges that Appellant directed the company to take actions 

“to intentionally conceal” OSHA citations. 
11

Even accepting these allegations as true, as we must, this 

alleged direction by Appellant could be satisfied by the company 

doing nothing at all; e.g., not publishing a report on the citations 

or not holding safety meetings. See Am. Dental Ass’n v. Cigna 

Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (“[C]ourts may infer 

from the factual allegations in the complaint ‘obvious alternative 

explanation[s],’ which suggest lawful conduct rather than the 

unlawful conduct the plaintiff would ask the court to infer.”); cf.

Morales v. Racetrac Petroleum, Inc., 2017 WL 6320299 at *1, 2 

(M.D. Fla. Dec. 11, 2017) (dismissing complaint alleging 

intentional-tort exception to workers’ compensation immunity,

because the complaint’s vague and conclusory allegations “merely 

recite the elements of the intentional tort exception without 

providing facts from which the Court could draw a favorable 

instance”). Without clearly stated allegations asserting that 

Appellant “personally and intentionally engaged in the tortious 

conduct,” we cannot say that “the specific conduct of the 

nonresident corporate officer was calculated to inflict a direct 

injury upon a resident of Florida.” Rensin, 18 So. 3d at 576. In the 

absence of an intentional tort, Appellee cannot rely on the

intentional-tort exception to the corporate shield doctrine.2 

II. Whether the amended complaint alleged a 

cause of action arising from a business venture in Florida

Section 48.193(1)(a)1. confers jurisdiction where a complaint 

alleges facts stating a cause of action that arises from “[o]perating, 

conducting, engaging in, or carrying on a business or business 

venture in this state or having an office or agency in this state.” 

§ 48.193(1)(a)1., Fla. Stat. When a defendant contests a 

complaint’s jurisdictional allegations, or the minimum contacts 

supporting jurisdiction, he or she “must file an affidavit in support 

of his or her position. The burden is then placed upon the plaintiff 

to show by counter-affidavit the basis upon which jurisdiction is 

 2 Because the amended complaint fails to assert a basis for 

long-arm jurisdiction in the absence of alleging an intentional tort, 

we need not address whether Appellant’s affidavit refutes the 

allegations, or whether Appellant has minimum contacts sufficient 

to satisfy due process. See Doe, 620 So. 2d at 1005.
12

obtained.” Doe, 620 So. 2d at 1005. “If the affidavits can be 

harmonized, the court can resolve the jurisdiction issue based 

upon the undisputed facts. If not, ‘the trial court [must] hold a 

limited evidentiary hearing in order to determine the jurisdiction 

issue.’” Schwartzberg v. Knobloch, 98 So. 3d 173, 178 (Fla. 2d DCA 

2012) (quoting Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 

502-03 (Fla. 1989)).

Here, Appellant submitted an affidavit attesting that she 

resides in Connecticut and is licensed to practice law in 

Connecticut and Maryland. She stated that at no time has she: 

had a usual place of abode in Florida; had a personal bank account 

in Florida; had a personal phone number in Florida; owned real 

property in Florida; filed a personal tax return in Florida; or had a 

business office in Florida. She attested that she never served as 

general counsel for Otis North America (a subsidiary of Otis 

Elevator Company alleged to have relocated to Florida) or 

supervised Florida branch offices, and that any work she 

performed in Florida was in her capacity as a corporate officer.

Appellant’s sworn statements refute any allegation asserting 

a “business venture” basis for jurisdiction, thereby shifting the 

burden back to Appellee. Cf. Doe, 620 So. 2d at 1005. Although 

Appellant admitted signing the company’s annual report 

submitted to the Florida Secretary of State, this is insufficient to 

establish jurisdiction, as the cause of action does not arise from 

this contact. See Carter v. Estate of Rambo, 925 So. 2d 353, 356 

(Fla. 5th DCA 2006).

Appellee’s response in opposition to Appellant’s motion to 

dismiss merely reasserted the allegations in the amended 

complaint and referred to admissions in Appellant’s affidavit. See

Goldberg, 2014 WL 2573060 at *3 (to prevail after a defendant 

refutes allegations, a plaintiff must do more than “‘merely 

reiterate the factual allegations in the complaint’” (quoting Future 

Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1237, 1249

(11th Cir. 2000)). Although Appellee’s response refers to exhibits 

attached to the amended complaint, none of the exhibits show 

personal business ventures. As Appellant’s sworn affidavit refuted

any allegations of a personal business office or personal business 

venture, and as Appellee presented no evidence to counter that 
13

affidavit, there was no basis for the trial court to exercise specific 

jurisdiction under section 48.193(1)(a)1., Florida Statutes. 

The corporate shield doctrine bars Florida courts from 

exercising personal jurisdiction over Appellant. We thus reverse 

and remand with directions to the trial court to enter an order 

dismissing the amended complaint as to Appellant.

REVERSED and REMANDED.

ROBERTS and OSTERHAUS, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Kenneth B. Bell and Lauren V. Purdy of Gunster, Yoakley & 

Stewart, P.A., Tallahassee, for Appellant.

Philip J. Padovano of Brannock & Humphries, Tallahassee, and 

Maegen Peek Luka of Brannock & Humphries, Tampa; Sidney L. 

Matthew of Sidney L. Matthew, P.A., Tallahassee, for Appellee.