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Promaulayko v. Amtorg Trading Corp.

Decided: April 20, 1988.

MARIE PROMAULAYKO AS ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN PROMAULAYKO, PLAINTIFF,
v.
AMTORG TRADING CORPORATION, DEFENDANT, CROSS-CLAIMANT-APPELLANT, AND LEONARD J. BUCK, INC., DEFENDANT, CROSS-CLAIMANT-RESPONDENT AND JOHNS MANVILLE SALES CORPORATION SUCCESSOR TO AND IN LIEU OF JOHNS MANVILLE PRODUCTS CORP.; JOHNS MANVILLE CANADA INC. FORMERLY KNOWN AS CANADIAN JOHNS MANVILLE CO., LTD., CANADIAN JOHNS MANVILLE AMIANTE LTD. FORMERLY CANADIAN JOHNS MANVILLE ASBESTOS LTD.; JOHNS MANVILLE CORPORATION; JOHN DOE TRADE ASSOCIATION; JOHN DOE CORPORATION; ASBESTOS CORPORATION LTD. INDIVIDUALLY AND AS SUCCESSOR TO JOHNSON'S COMPANY LTD.; YORK INDUSTRIES INC.; CELOTEX CORPORATION; CAPE ASBESTOS LTD.; NORTH AMERICAN ASBESTOS CORPORATION; NATIONAL GYPSUM; VERMONT ASBESTOS GROUP; A.N. DERRINGER INC.; CAREY CANADIAN MINES; KENNETH SMITH, M.D.; AND THE ASSOCIATED ORE AND METAL CORPORATION LTD., DEFENDANTS



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

J. H. Coleman and O'Brien. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.

Coleman

The novel question presented in this appeal is whether in a strict liability case, one distributor in a chain of distributors of a defective product is entitled to common law indemnification from another distributor where both are found to be vicariously liable to an injured party. Here, the primary liability or the defect in the product was the absence of a warning on a product which proximately caused asbestosis. The trial judge ordered common law indemnification.*fn1 We now reverse.

The essential facts are not complicated. John Promaulayko was employed for more than 40 years by the Ruberoid Corporation, South Bound Brook Plant (Ruberoid). His job was to assist in the manufacture of asbestos shingles. His job exposed him to asbestos fiber which caused him to contract

asbestosis. He died on October 1, 1980. Plaintiff filed a wrongful death and a survivor's action against the suppliers of asbestos fiber and asbestos containing products to Ruberoid during the 40 years John Promaulayko worked for Ruberoid. The claims were based on defective warnings on the effects of asbestos fiber. See Fischer v. Johns-Manville Corp., 103 N.J. 643, 653-654 (1986); Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 201-202 (1982); Freund v. Cellofilm Properties, Inc., 87 N.J. 229, 240-241 (1981).

At the conclusion of a jury trial, the jury found that defendants did not wrongfully cause the death of decedent. Based on the evidence, the jury apparently concluded that decedent died from a heart attack which was unrelated to his asbestosis. Thus, the wrongful death cause of action was dismissed. On the survivor's cause of action, however, the jury found that the estate and the widow, Marie Promaulayko, should recover from Asbestos Corporation Limited, Amtorg Trading Corporation (Amtorg) and Leonard J. Buck, Inc. (Buck). Buck and Amtorg were the brokers-distributors which sold Russian asbestos fiber and asbestos products to Ruberoid during decedent's employment. Asbestos Corporation Limited sold non-Russian made asbestos fiber to Ruberoid during decedent's employment.

The jury returned a verdict in favor of the estate for $60,000 and in favor of Marie Promaulayko for $40,000 on her per quod claim. The jury also answered the following special interrogatories:

6. Considering that all of the fault which proximately contributed to John Promaulayko's asbestosis is 100%, what percentage of that total fault is attributable to:

(a) Leonard J. Buck, Inc. 25%

(b) Amtorg Trading Corp. 10%

(c) Asbestos Corp., Ltd. (also known as Johnson's Company

Ltd.) 65%

TOTAL ...


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