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LOVE v. JOHNS-MANVILLE CANADA

May 29, 1985

JOSEPH and FLORENCE LOVE, Plaintiffs,
v.
JOHNS-MANVILLE CANADA, Inc., et al., Defendants



The opinion of the court was delivered by: FISHER

 In this asbestos-related products liability action, third party defendants Pacor, Inc. and Owens Corning Fiberglas, Inc. *fn1" have moved for summary judgment *fn2" on the basis of the decision in Cohn v. G.D. Searle Co., 598 F. Supp. 965 (D.N.J. 1984), appeal docketed, No. 85-5048 (3rd Cir. Jan. 21, 1985), in which the District Court retroactively applied the New Jersey Supreme Court's decision in Coons v. American Honda Motor Co., 94 N.J. 307, 463 A.2d 921 (1983), cert. denied, 469 U.S. 1123, 105 S. Ct. 808, 83 L. Ed. 2d 800 (1985) invalidating the tolling provision of N.J.S.A. 2A:14-22 (West 1952) (hereinafter "the tolling provision") to bar a products liability claim. For the reasons stated hereafter, the motions are denied.

 I. Facts

 Plaintiffs Joseph and Florence Love instituted this action in August 1981 seeking damages for injuries resulting from Mr. Love's exposure to asbestos-containing products during the course of his employment at various shipyards. Mr. Love was first diagnosed as suffering from asbestosis in 1970. In his deposition he admitted that he did not institute legal action for his injuries at that time because he felt he could still earn a living.

 Only several years later did the Loves consult a lawyer regarding a claim for Mr. Love's asbestos-related injuries. *fn3" At that time they found their claims barred by the two year statute of limitations applicable to personal injury claims. See N.J.S.A. 2A:14-2 (West 1952). However, plaintiffs commenced this action in August 1981 in reliance on the tolling provision. *fn4"

 During the pendency of this action, the New Jersey Supreme Court issued its opinion in Coons I, which invalidated the tolling provision. *fn5" There the Court held that the tolling provision amounted to a "forced-licensure provision" which, when required of foreign corporations, unconstitutionally burdened interstate commerce. In Coons I the Court initially provided for retrospective application of its holding, making its decision applicable to all matters which had not reached final judgment as of the date of its decision. Id. 94 N.J. at 318-19, 463 A.2d at 927.

 In 1984 the New Jersey Supreme Court granted plaintiff's petition for rehearing limited to the issue of retroactive application of the holding in Coons I. In Coons v. American Honda Motor Company, 96 N.J. 419, 476 A.2d 763 (1984), cert. denied, 469 U.S. 1123, 105 S. Ct. 808, 83 L. Ed. 2d 800 (1985) (" Coons II "), the New Jersey Supreme Court reversed its earlier position, and held "as a matter of state law that Coons I is to be applied prospectively only from the date of that decision, August 3, 1983." Id. at 422, 476 A.2d at 765 (emphasis added).

 Since the date of Coons II two decisions in this district have addressed the question of retroactive application of Coons I. In the first of these, Hopkins v. Kelsey-Hayes, No. 78-1646 letter op. (D.N.J. June 21, 1984) (Brotman, J.), the Court found Coons II controlling on the issue and applied Coons I prospectively.

 
Applying federal law, the determination that the statute (N.J.S.A. 2A:14-22) is unconstitutional [in Coons I ] must be given retroactive effect and should be applied, at the very least, to the instant case.

 Id. Subsequent to the decision in Cohn, the United States Supreme Court denied cross-petitions for writs of certiorari in Coons.6

 II. Conclusions of Law

 Defendants' motions are supported by a recitation seriatim, of the retroactivity analysis in Cohn, concluded by an argument that this Court should follow the holding in Cohn. In opposition, plaintiffs urge that under the civil retroactivity standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), the Court should apply Coons I prospectively.

 A. Applicable Law

 While the parties are in apparent agreement on the applicable body of law controlling the retroactivity issue, this decision clarifies the basis upon which this Court concludes that federal law governs its decision.

 Coons II applied state law to reach the conclusion that Coons I applies prospectively; however, Judge Debevoise in Cohn noted:

 
It would be difficult to reconcile rationally a holding that federal law will be applied to determine the constitutionality of a statute but that the states remain free to determine under state law when and how the ruling of unconstitutionality will be applied. Such a rule would provide a tool for nullification of constitutional decisions and does not constitute current law.
 
* * * *
 
Federal law governs the retroactivity question in this case.

 598 F. Supp. at 969. This Court believes Cohn accurately states the law. While no case expressly so holds, the precedents of the Supreme Court dictate the conclusion that federal law must govern the retroactive application and enforcement of federal constitutional rights by the states.

 The Supreme Court frequently reviews state court decision on the retroactivity of new federal constitutional rulings. The unstated holding of such cases is that federal law controls the issue. Cohn, 598 F. Supp. at 969. See, e.g., Brown v. Louisiana, 447 U.S. 323, 326-27, 65 L. Ed. 2d 159, 100 S. Ct. 2214 (1980) (reversing decision of Louisiana Supreme Court that United States Supreme Court's decision holding nonunanimous juries for nonpetty offenses unconstitutional should be applied only to juries empaneled after the date of the decision); Michigan v. Payne, 412 U.S. 47, 57, 36 L. Ed. 2d 736, 93 S. Ct. 1966 (1973) (reversing decision of Michigan Supreme Court applying North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), retroactively). See also Hankerson v. North Carolina, 432 U.S. 233, 53 L. Ed. 2d 306, 97 S. Ct. 2339 (1977); Ivan v. City of New York, 407 U.S. 203, 32 L. Ed. 2d 659, 92 S. Ct. 1951 (1972); Adams v. Illinois, 405 U.S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916 (1972).

 Furthermore, several state courts have acknowledged that federal law controls the retroactivity of federal constitutional decisions. *fn7" See, e.g., People v. Burnick, 14 Cal. 3d 306, 535 P.2d 352, 121 Cal. Rptr. 488 (1975) (under U.S. Supreme Court retroactivity principles, decision that Fourteenth Amendment requires proof beyond reasonable doubt in mentally disordered sex offender proceedings must be retroactively applied); State v. Bernard, 391 So. 2d 1180, 1181 (La. 1980) (in Brown v. Louisiana, 447 U.S. 323, 65 L. Ed. 2d 159, 100 S. Ct. 2214, U.S. Supreme Court ordered retroactive application of decision in Burch v. Louisiana, 441 U.S. 130, 60 L. Ed. 2d 96, 99 S. Ct. 1623 (1979), prohibiting nonunanimous six-member jury verdicts; hence, 5-1 verdict returned against defendant in a pre-Burch trial must be reversed); Commonwealth v. Stokes, 374 Mass. 583, 374 N.E.2d 87, 91-92 (1978) (decision in Hankerson v. North Carolina, 432 U.S. 233, 53 L. Ed. 2d 306, 97 S. Ct. 2339 (1977), applying retroactively the Supreme Court's decision concerning constitutional requirements for jury charge on self-defense in Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), requires reversal of defendant's pre-Mullaney conviction); People v. Paterson, 39 N.Y.2d 288, 347 N.E.2d 898, 903 (1976), aff'd, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977) (U.S. Supreme Court retroactivity precedents mandate retroactive application of federal constitutional rule set forth in Mullaney v. Wilbur); Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724, 727-28 (1978) (U.S. Supreme Court's decision in Hankerson v. North Carolina, 432 U.S. 233, 53 L. Ed. 2d 306, 97 S. Ct. 2339, which mandates retroactive application of Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881, requires reversal of defendant's pre-Mullaney conviction).

 Finally, the Court echoes the sentiment expressed in Cohn, that it would be somewhat anomalous to countenance a rule which would leave states free to implement or delay implementation of federal constitutional rulings on state law decisional grounds. This is particularly inappropriate when the federal ruling implicates the commerce clause, because that clause is meant to protect against "state action which imposes special or distinct burdens on out-of-state interests unrepresented in the states political process. L. Tribe, American Constitutional Law § 6-5 (1978).

 B. The Appropriate Federal Standard

 The issue of retroactivity of federal constitutional decisions in civil cases is governed by a three part balancing test adopted by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971). *fn8"

 There the Court stated:

 
In our cases dealing the with nonretroactive question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that "we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." [Citation omitted]. Finally, we have weighed the inequity imposed by retroactive application, for "where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship' by a holding of nonretroactivity. '" [Citation omitted].

 404 U.S. at 106-07. In principle both parties agree that Chevron controls this Court's decision. Defendants, however, insist, as is stated in Cohn, that a subsequent Supreme Court decision has modified the first Chevron factor, thus ...


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