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Dewalt v. Dow Chemical Co.

Decided: December 8, 1989.

KAZY DEWALT AND PEARLINE DEWALT, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
DOW CHEMICAL COMPANY, DEFENDANT-APPELLANT, AND CHEVRON OIL REFINERY; CELOTEX CORP., INDIVIDUALLY AND AS SUCCESSOR TO PHILIP CAREY COMPANY, PHILIP CAREY MANUFACTURING COMPANY, SMITH & KANZLER, QUEBEC ASBESTOS MINES, BRIGG MANUFACTURING COMPANY AND PANACON, INC.; ROBERT A. KEASBEY COMPANY; PORTER HAYDEN CO. A/K/A H.W. PORTER CO. AND REID HAYDEN; STATE INSULATION CORP.; MADSEN & HOWELL; OWENS CORNING FIBERGLAS; EAGLE PICHER INDUSTRIES, INC.; JOHN DOE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE CORPORATIONS, COMPANIES, PARTNERSHIPS OR OTHER BUSINESS ENTITIES OR ORGANIZATIONS, WHOSE IDENTITIES ARE PRESENTLY UNKNOWN, ENGAGED IN THE MINING, MILLING, MANUFACTURE, SUPPLY, DISTRIBUTION, INSTALLATION AND/OR REMOVAL OF ASBESTOS OR ASBESTOS CONTAINING PRODUCTS TO WHICH PLAINTIFF WAS EXPOSED); JUDY DOE CORPORATIONS (A FICTITIOUS NAME REPRESENTING ONE OR MORE LEGAL ENTITIES WHO STAND IN THE SHOES OF THE JOHN DOE DEFENDANTS EITHER AS SUCCESSOR IN INTEREST, ALTER EGO OR BY OTHER EQUITABLE DOCTRINE WHICH MAKES THEM RESPONSIBLE FOR THE JOHN DOE LIABILITY); RICHARD ROE CORPORATIONS (A FICTITIOUS NAME REPRESENTING UNSAFE WORKSITES WHICH ARE PRESENTLY UNKNOWN AT WHICH THE PLAINTIFF WAS EMPLOYED), DEFENDANTS



Gaulkin, Dreier and Scalera. The opinion of the court was delivered by Scalera, J.A.D.

Scalera

This case requires us to expound again on the principles governing a successful litigant's attempt to recoup counsel fees pursuant to R. 4:22 and R. 4:23-3.

Plaintiffs, Kazy DeWalt and his wife Pearline DeWalt, instituted suit on May 12, 1987 to recover damages against a series of defendants, contending that Kazy DeWalt had been injured as a result of exposure to asbestos from 1973 through 1981. Kazy DeWalt had been employed by Joule Construction Company during this period of time. It was alleged he had worked at various job sites, including that owned by defendant Dow Chemical Company from 1974 to 1978. Plaintiffs alleged further, that defendants "failed to provide a safe worksite for plaintiff and allowed finished and unfinished asbestos . . . to be present . . . where plaintiff was employed." Discovery was conducted pursuant to a general order promulgated to govern asbestos litigation during which Dow advised plaintiffs that it

had "never manufactured, sold or distributed asbestos nor asbestos containing products to which plaintiff [Kazy DeWalt] might have been exposed." In their answers to Dow's interrogatories, however, plaintiffs' allegations were consistent with Kazy DeWalt's exposure to asbestos at the Dow worksite.

On January 29, 1988 Dow served Requests for Admission which plaintiffs answered:

1. Kazy DeWalt was never employed by The Dow Chemical Company.

Admitted.

2. Kazy DeWalt does not have any evidence that he was exposed to asbestos in any product manufactured by The Dow Chemical Company.

Denied.

3. Kazy DeWalt does not have any evidence that he was exposed to asbestos in any product sold by The Dow Chemical Company.

Denied.

4. Kazy DeWalt does not have any evidence that he was exposed to asbestos in any product distributed by The Dow Chemical Company.

Denied.

5. Kazy DeWalt's only contention concerning The Dow Chemical Company is that while employed by Joule Construction Company, he installed insulation at a Dow Chemical ...


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