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Promaulayko v. Johns Manville Sales Corp.

Decided: August 8, 1989.

MARIE PROMAULAYKO, AS ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOHN PROMAULAYKO, PLAINTIFF,
v.
JOHNS MANVILLE SALES CORPORATION, JOHNS MANVILLE SALES CORPORATION, SUCCESSOR TO AND IN LIEU OF JOHNS MANVILLE PRODUCTS CORPORATION; 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.; YORK INDUSTRIES; CELOTEX CORP.; CAPE ASBESTOS LTD.; NORTH AMERICAN ASBESTOS CORP.; NATIONAL GYPSUM; VERMONT ASBESTOS GROUP; A.N. DERINGER INC.; CARY CANADIAN MINES; KENNETH SMITH, M.D.; AND THE ASSOCIATED ORE AND METAL CORPORATION LTD., DEFENDANTS, V. LEONARD J. BUCK, INC., DEFENDANT, CROSS-CLAIMANT-RESPONDENT, AND AMTORG TRADING CORPORATION, DEFENDANT, CROSS-CLAIMANT-APPELLANT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 224 N.J. Super. 391 (1988).

For reversal and remandment -- Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

The sole issue on this appeal is whether an intermediate distributor in a chain of distribution should indemnify the ultimate distributor when both are strictly liable in tort to the injured plaintiff. The Law Division granted indemnification to the ultimate distributor, but the Appellate Division reversed, 224 N.J. Super. 391 (1988). We granted certification, 113 N.J. 338 (1988), and now reverse the judgment of the Appellate Division.

-I-

The underlying facts are that the decedent, John Promaulayko (Promaulayko), contracted asbestosis while working for Ruberoid Corporation from 1934 to 1978 at its South Bound Brook plant. During that period, Ruberoid purchased asbestos from Leonard J. Buck, Inc. (Buck), Asbestos Corporation Limited

(Asbestos), and various other suppliers. Included in the asbestos sold by Buck to Ruberoid's South Bound Brook plant was 96.5 tons of Soviet asbestos, which Buck purchased from Amtorg Trading Corporation (Amtorg). The asbestos was packaged in 100-pound bags that did not warn of the dangers of asbestosis. Apparently neither Amtorg nor Buck ever took possession of the bags, which were shipped from the Soviet Union to the United States where Ruberoid took possession of them.

The jury determined in answer to a special interrogatory that Amtorg had supplied all of the Soviet asbestos that caused Promaulayko's injuries. After Promaulayko's death, his wife, plaintiff, Marie Promaulayko, instituted wrongful death, N.J.S.A. 2A:31-1 to -6, and survivor's, N.J.S.A. 2A:15-3, actions, naming as defendants, among others, Amtorg, Buck, and Asbestos. Only Buck and Amtorg are involved in the present appeal.

Buck, a corporation of the State of Delaware, is a broker of mineral products, whose brokerage of asbestos at the time of its sales to Ruberoid accounted for less than one percent of its business. Amtorg is a New York corporation founded in 1924 to promote trade between the United States and the Soviet Union. Its employees are Soviet citizens, the majority of whom remain in the United States for three or four years before returning to jobs in the Soviet Ministry of Foreign Trade. By 1930, Amtorg served as broker for eighty-six percent of the Soviet products entering the United States. At present, Amtorg serves as a direct agent for Soviet business interests and channels the majority of Soviet trade to the United States.

At the conclusion of the trial, the jury dismissed plaintiff's wrongful-death claim, apparently because Promaulayko died from a heart attack unrelated to his asbestosis. The jury awarded $60,000 to Promaulayko's estate on the survivor's action, and $40,000 to plaintiff on her per quod claim. In

reaching that result, the jury provided the following answers to special interrogatories:

6. Considering that all of the fault that 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. ...


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