The case before the court is on a motion for summary judgment filed on behalf of the defendant, Carrier Corporation to dismiss a complaint based upon N.J.S.A. 2A:14-1.1, the ten-year statute of repose for actions arising out of defective design or construction of improvements to real property. The heating, ventilation and air conditioning units located in the buildings where plaintiff worked and from which he alleges exposure to asbestos were installed more than ten years prior to April 23, 1987, the date this action was commenced.*fn1 Therefore, were N.J.S.A. 2A:14-1.1 to apply to this case, plaintiffs' suits would be barred. However, plaintiff challenges the application of the statute of repose in that plaintiff's asbestos exposure occurred on properties located exclusively in New York State. Plaintiff therefore argues that New York State's substantive law applies to this case where no statute of repose exists. Resolution of this issue therefore will depend upon a choice of law question.
On July 31, 1987 plaintiff, Warren Van Slyke was diagnosed by Dr. Susan Daum as suffering from pleural and pulmonary asbestosis related to his asbestos exposure. Mr. Van Slyke and his wife, Barbara Van Slyke, filed the instant suit alleging that Mr. Van Slyke was exposed to asbestos containing thermal insulation products between 1946 and 1984 while engaged in the repair and maintenance of various heating and cooling units all of which were located within buildings in New York City, New York. Mr. Van Slyke is and has been a New Jersey resident since 1964.
Defendant, Carrier Corporation is incorporated under the laws of Delaware and has its principal place of business in Syracuse, New York.
The preliminary issue to be resolved before reaching the conflicts of law question is whether N.J.S.A. 2A:14-1.1 is a matter of substantive or procedural law of this state. N.J.S.A. 2A:14-1.1 reads:
No action whether in contract, tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.
This State's Supreme Court has heretofore recognized both the procedural and substantive aspects of the statute of repose.
N.J.S.A. 2A:14-1.1 is a . . . hybrid. On the one hand, it bars a right of action from coming into existence if the accident occurs subsequent to the ten-year period; but as to those events happening before the statutory period has run, the provision disallows, like any other statute of limitations, the institution of suit after the prescribed ten years has expired. [ O'Connor v. Altus, 67 N.J. 106, 121-122, 335 A.2d 545 (1975)].
New Jersey Courts have recognized the substantive aspects the statute of repose by distinguishing it from statutes of limitations. Statutes of limitation and repose are distinguishable by their method of operation. The typical statute of limitations bars a remedy, in the sense that once a cause of action accrues, a plaintiff has a limited amount of time within which to file suit. If the suit is not commenced within the prescribed period of time, the party or parties loose the ability to seek relief otherwise available. In this manner the typical statute of limitations is a rule of procedure. But, the New Jersey Supreme Court has also found that N.J.S.A. 2A:14-1.1, is not a conventional statute of limitations "at all, at least in the traditional sense of the term." E.A. Williams v.
Russo Development Corp., 82 N.J. 160, 167, 411 A.2d 697 (1980). The time within which suit may be brought under N.J.S.A. 2A:14-1.1 is wholly unrelated to the accrual of a cause of action. The statute of repose "doesn't "bar" a remedy in the sense of providing an injured person a certain time to institute suit after the "accrual" of a "cause of action"." Id. "Rather, . . . the statute [of repose] prevents what might otherwise be a cause of action from ever arising . . . ." after a ten year period. Id.; O'Connor v. Abraham Altus, 67 N.J. 106, 121-122, 335 A.2d 545 (1975); Rosenberg v. Town of North Bergen, 61 N.J. 190, 199, 293 A.2d 662 (1972). As such, "[t]he function of the statute is thus to define substantive rights than to alter or modify a remedy." Rosenberg, supra, at 199, 293 A.2d 662.
Statutes of limitations and statutes of repose may also be distinguished by their purpose. Statutes of limitations are designed to stimulate litigants to prosecute their suits diligently and to avoid burdening our courts with stale claims. Rosenau v. City of New Brunswick, 51 N.J. 130, 136, 238 A.2d 169 (1968). On the other hand the statute of repose does not serve to limit stale claims as such. Rather, the statute literally confers immunity ten years after the performance of services or construction when an injury occurs due to a defect or unsafe condition, regardless of any intended useful life of a product. McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 166, 521 A.2d 851, certif. den., 108 N.J. 219, 528 A.2d 36, 37 (1987).
It is against this backdrop the statute must be analyzed. In the case before the court, were the statute to be used as defendant suggests, plaintiffs would simply have no cause of action. The harm that has occurred would be damnum absque injuria -- a wrong for which the law provides no remedy against this defendant. Rosenberg, supra, at 199, 293 A.2d 662. Therefore, the Van Slykes would have had to file suit many years prior to 1987 filing date of their complaint to have had any cause of action ...