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Stevenson v. Keene Corp.

Decided: February 27, 1992.

MURIAL STEVENSON, INDIVIDUALLY AND AS ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF HOWARD STEVENSON, PLAINTIFF-RESPONDENT,
v.
KEENE CORPORATION, ET AL., DEFENDANTS, AND PORTER-HAYDEN COMPANY, DEFENDANT-APPELLANT



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

Michels, Havey and Conley. The opinion of the court was delivered by Conley, J.s.c., temporarily assigned.

Conley

CONLEY, J.S.C., temporarily assigned.

On leave granted, defendant Porter-Hayden Company appeals an interlocutory in limine ruling that the 1987 amendments to the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., which modify heretofore unrestricted joint liability in tort litigation, are not applicable to asbestos tort litigation. The trial Judge held the exception to the amendments for "environmental tort actions", provided in N.J.S.A. 2A:15-5.3d, includes asbestos torts. The trial Judge, thus, held that defendants found responsible in such tort litigation remain jointly and severally liable under the Comparative Negligence Act. We agree and affirm.

Plaintiffs Howard and Muriel Stevenson filed suit against 26 defendants alleging personal injuries and loss of services due to Howard's exposure to asbestos. When plaintiff Howard Stevenson thereafter died of mesothelioma, an asbestos-related disease, plaintiff Muriel Stevenson amended the complaint to include wrongful death and survivorship actions.

The complaint alleges Howard was exposed to asbestos both directly and indirectly in the following ways:

1. Howard shared a room with his brother George for seven years while George was employed in a company making asbestos shingles. During this time George would come home wearing his work clothes covered with asbestos dust.

2. During Howard's marriage he was daily exposed to his own residential driveway which had been filled with free asbestos waste. The waste had been distributed to South Bound Brook residents by Ruberoid, a local company.

3. Howard was exposed through his work at American Cyanamid Company between 1937 and 1982. During this period Howard held several jobs, working mostly as a welder and engineer. Though he occasionally handled asbestos products directly, his exposure stemmed mainly from airborne asbestos dust produced at work stations near him. Defendant Porter-Hayden was the primary distributor of asbestos to American Cyanamid.

4. On a six-month hiatus from his work at American Cyanamid in 1940 to 1941, Howard worked at a federal shipyard as a welder. All trades worked in tight quarters and conditions were dusty; Howard would sweep the debris of asbestos scrap, residue and powder that fell from insulation work. A bankrupt company was the major supplier of asbestos to this jobsite.

5. During another hiatus from American Cyanamid, eighteen months long from 1944 to 1946, Howard served the Navy as a fireman in the boiler rooms of three ships. The boilers and pipes were insulated in asbestos, and at the boiler's start up, asbestos dust would be blown around.

Prior to trial, two defendants were dismissed, three had declared bankruptcy, and seventeen had settled with plaintiff. Remaining defendants included Porter-Hayden, Armstrong World Industries, Inc., Am-Chem. Inc., GAF, Flexitallic Inc., Turner & Newell (TNN PLC), and the Manville Corporation Asbestos Disease Compensation Fund. Of these defendants Armstrong, Am-Chem, GAF, and Flexitallic are represented through the Center for Claims Resolution (CCR) a trial and settlement consortium of 21 asbestos companies. It is Porter-Hayden's contention that if plaintiff receives an award of damages, she is limited in her recovery against each of the remaining specific defendants to several liability only, consistent with the provisions of N.J.S.A. 2A:15-5.3, as amended in 1987.

Prior to 1987, N.J.S.A. 2A:15-5.3 permitted a plaintiff recovering a damage award in tort litigation to obtain:

In the early and mid 1980's, concern over the insurance industry and tort litigation prompted many reports on both a national and state level. See United States Attorney General's Tort Policy Working Group, Report on the Causes, Extent, and Policy Implications of the Current Crisis in Insurance Availability and Affordability (Feb. 1986); National Conference of State Legislatures, Resolving the Liability Insurance Crisis: State Legislative Activities in 1986 (Collected Papers) (July 1986); New Jersey Department of Insurance, Report to the Legislature

on the Commercial Insurance Deregulation Act of 1982 (April 1986); State of New Jersey County and Municipal Government Study Commission, Report to the Governor and Legislature, Local Government Liability Insurance; A Crisis (May 1986); New Jersey Insurance Task Force on Environmental Issues, Report (April 1986).

There were, as well, numerous New Jersey Assembly hearings: Insurance Problems Being Experienced by Public Entities: Public Hearing before the New Jersey Assembly Insurance Committee, February 18, 1986; Insurance Problems Being Experienced by Public Entities: Public Hearing before the New Jersey Assembly Insurance Committee, February 25, 1986; Insurance Problems Experienced by Public Entities: Public Hearing before the New Jersey Assembly Insurance Committee, February 28, 1986; Professional, Business, and Nonprofit Organizations' Liability Insurance: Public Hearing before the New Jersey Assembly Insurance Committee, April 10, 1986; Professional, Business, and Nonprofit Organizations' Liability Insurance: Public Hearing before the New Jersey Assembly Insurance Committee, April 14, 1986.

Senate hearings were also conducted: Senate Bill 1718 (Establishes the New Jersey Intergovernmental Excess Liability Commission): Public Hearing on S.1718 before the New Jersey Senate Labor, Industry and Professions Committee, March 5, 1986; Liability Insurance Issue: Public Hearing before the New Jersey Senate Labor, Industry and Professions Committee, July 28, 1986; Liability Insurance Crisis: Public Hearing before the New Jersey Senate Judiciary Committee and the New Jersey Senate Labor, Industry and Professions Committee, July 30, 1986.

The Reports, Papers and oral and written submissions during the Assembly and Senate hearings all reveal a then growing concern over the willingness of insurance companies to provide insurance for tort litigation and its affordability. Many perceived ...


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