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Westinghouse Electric Corp. v. Aetna Casualty & Surety Co.

Decided: March 22, 1988.

WESTINGHOUSE ELECTRIC CORP., PLAINTIFF,
v.
AETNA CASUALTY & SURETY COMPANY, ET AL., DEFENDANTS. WESTINGHOUSE ELECTRIC CORP., PLAINTIFF, V. LIBERTY MUTUAL INSURANCE COMPANY, ET AL., DEFENDANTS



Lawrence Weiss, J.s.c.

Weiss

[227 NJSuper Page 505] These declaratory judgment actions have been consolidated for the purpose of deciding the motion for dismissal on the basis of forum non conveniens.

FACTS

Westinghouse v. Liberty Mutual Insurance Company, et al, Docket No. L-069352-87.

This suit is against 140 plus insurance carriers who are alleged to have provided primary and excess coverage for property damage to Westinghouse from 1948 to the present. There are presently 33 attorneys representing the various carriers.

Westinghouse is seeking a declaration of coverage for 81 environmental sites, located in 23 states from California to Massachusetts. Presently there are nine suits pending against Westinghouse involving alleged contamination of waste sites. None of these suits are in New Jersey. Fifty-six of the sites are "non-owned" and Westinghouse is alleged to be one of the generators of toxic waste material on these sites rather than the owner. Nine of the 81 sites are located in New Jersey.

Westinghouse v. Aetna Casualty & Surety Co., et al., Docket No. L-069351-87.

This suit is a declaratory judgment action to determine the rights and obligations of Westinghouse and more than 100 liability carriers who provide Westinghouse with primary and excess coverage under Comprehensive General Liability policies from 1948 to the present. Westinghouse seeks a determination of its insurers' obligations with respect to past and future liabilities of Westinghouse arising out of various toxic exposure claims. The suit focuses principally on welding rod, PCB and asbestos-related claims. New Jersey's connection to Westinghouse asbestos matters is extremely limited. According to the information supplied by Westinghouse, it has been involved in 2,675 asbestos-related matters. Only 128 claims, less than five percent of the total, were filed in New Jersey.

An analysis of the PCB-related matters again reveals no connection with New Jersey. There are approximately 201 PCB-related matters which are at issue in this litigation and not one of these cases was filed in New Jersey.

The information supplied by Westinghouse reveals that it has been involved in 138 welding rod-related matters. Not one of these matters was filed in New Jersey.

Finally, Westinghouse seeks a declaration of its carriers' obligations with respect to a miscellaneous group of other toxic exposure matters. Westinghouse has identified 18 matters which fall within this classification and only one of these matters involves litigation filed in New Jersey.

JURISDICTION

Westinghouse is incorporated and has its principal place of business in Pennsylvania. Thermo King is a Delaware corporation with its principal place of business in Minnesota. However, Westinghouse's presence in New Jersey is significant. It employs over 1,000 people in this State and paid more than $1.5 million in taxes to state and local governments in 1986. Westinghouse owns over 250 acres of property in this State, including its elevator division in Morristown and its apparatus service center in Hillside.

The defendant insurance companies are either incorporated in this state, authorized to conduct business in this state, or have expressly submitted to any forum chosen by Westinghouse to litigate insurance contract disputes.

Clearly there can be no dispute that New Jersey possesses jurisdiction over each of the defendants. The real question is whether New Jersey is the proper forum to decide these particular complaints.

In recent years there has been an enormous increase of toxic site pollution problems as well as personal injury claims arising out of exposure to asbestos and other toxic materials. It has been estimated that "more than 30,000 asbestos-related personal injury claims were filed nationwide by 1986, and an additional 180,000 claims are projected to be on court dockets by the year 2010." In re School Asbestos Litigation, 789 F.2d 996, 1000 (3rd Cir.1986).

The Environmental Protection Agency projects that superfund cleanup could eventually involve as many as 22,000 waste sites throughout the nation. Business and the Law; Suits Mounting on Toxic Waste, N.Y. Times, February 15, 1988, at D2, col. 1.

Because of New Jersey's favorable economic structure, many chemical companies and manufacturers of toxic materials are located here or have used this State's land as toxic waste disposal sites. Our courts have already been faced with determining coverage questions on sites located in this State. See Broadwell Realty v. Fidelity Casualty, 218 N.J. Super. 516 (App.Div.1987); Jackson Township, etc. v. Hartford Acc. Indemn. Co., 186 N.J. Super. 156 (Law Div.1982). The courts can anticipate many declaratory judgment actions in the future.

The doctrine of forum non conveniens is a procedural device used by defendants to avoid the sometimes harsh consequences of being compelled to litigate in an inconvenient forum. The New Jersey Supreme Court has defined the doctrine in Civic Southern Factors v. Bonat, 65 N.J. 329, 332-333 (1974) where it states: "The doctrine of forum non conveniens, an equitable principle, is firmly imbedded in the common law of this State. Starr v. Berry, 25 N.J. 573 (1958); Vargas v. A.H. Bull Steamship Co., 25 N.J. 293 (1957) cert. den., 355 U.S. 958, 78 S. Ct. 545, 2 L. Ed. 2d 534 (1958); Gore v. United States Steel Corp., 15 N.J. 301 (1954), cert. den. 348 U.S. 861, 75 S. Ct. 84, 99 L. Ed. 678 (1954). In essence, the doctrine means that a court may decline jurisdiction whenever the ends of justice indicate that trial in the forum selected by the plaintiff would be inappropriate."

A plaintiff's choice of forum is presumed to be valid. A defendant is required to overcome this presumption in order to successfully invoke the doctrine. Defendant must show "hardship . . . or any other compelling reason for depriving plaintiffs of their choice of forum." Radigan v. Innisbrook Resort and Golf Club, 150 N.J. Super. 427, 431 (App.Div.1977).

The United States Supreme Court has stated "unless the balance is strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947). Any analysis of the doctrine must, therefore, begin with the premise that the forum chosen by a plaintiff is a proper one. The application of the doctrine ...


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