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Provini v. Asbestospray Corporation

May 16, 2003

ANGELA J. PROVINI, EXECUTRIX OF THE ESTATE OF CHARLES R. PROVINI, DECEASED, PLAINTIFF-APPELLANT,
v.
ASBESTOSPRAY CORPORATION AND H&A CONSTRUCTION, ITS SUCCESSORS; SPRAYON INSULATION AND ACOUSTICS, INC.; SPRAYON RESEARCH CORPORATION; SPRAYDON CORP., NV OF CURACO; AMERICAN ENERGY CONCEPTS, INC.; AMERICAN ENERGY PRODUCTS CORP; UNITED STATES MINERAL PRODUCTS COMPANY; KEENE CORPORATION; ROBERT A. KEANSBEY COMPANY; EMPIRE-ACE INSULATION MANUFACTURING CO.; US GYPSUM CO.; TURNER AND NEWALL LIMITED; SPRAYCRAFT CORPORATION; SMITH AND KENZLER CORPORATION II; ASBESTOS PRODUCTS MANUFACTURING CORPORATION; LEONARD J. BUCK COMPANY; ARMSTRONG CONTRACTING & SUPPLY, INC., DEFENDANTS, MFS, INC.; DANA CORPORATION, DEFENDANTS-RESPONDENTS, AND STRUCTURAL COATINGS, INC., DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.



Before Judges Petrella, Parker and Bilder. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Number L-10853-95.

The opinion of the court was delivered by: Parker, J.A.D.

As amended May 23, 2003.

ANGELA J. PROVINI, EXECUTRIX OF THE ESTATE OF CHARLES R. PROVINI, DECEASED, PLAINTIFF-APPELLANT,
v.
ASBESTOSPRAY CORPORATION AND H&A CONSTRUCTION, ITS SUCCESSORS; SPRAYON INSULATION AND ACOUSTICS, INC.; SPRAYON RESEARCH CORPORATION; SPRAYDON CORP., NV OF CURACO; AMERICAN ENERGY CONCEPTS, INC.; AMERICAN ENERGY PRODUCTS CORP; UNITED STATES MINERAL PRODUCTS COMPANY; KEENE CORPORATION; ROBERT A. KEANSBEY COMPANY; EMPIRE-ACE INSULATION MANUFACTURING CO.; US GYPSUM CO.; TURNER AND NEWALL LIMITED; SPRAYCRAFT CORPORATION; SMITH AND KENZLER CORPORATION II; ASBESTOS PRODUCTS MANUFACTURING CORPORATION; LEONARD J. BUCK COMPANY; ARMSTRONG CONTRACTING & SUPPLY, INC., DEFENDANTS, MFS, INC.; DANA CORPORATION, DEFENDANTS-RESPONDENTS, AND STRUCTURAL COATINGS, INC., DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.

Before Judges Petrella, Parker and Bilder. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Number L-10853-95.

Kenneth E. Joel argued the cause for appellant.

John D.Q. Briggs argued the cause for respondent Mfs, Inc. (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Carolyn F. O'Connor, of counsel; Joseph T. Hanlon, on the brief).

Picillo, Caruso, O'Toole, attorneys for respondent Dana Corporation (Kevin O'Toole, of counsel and on the brief).

Stephen V. McHugh argued the cause for respondents/ cross-appellants Structural Coatings, Inc. (Kent and McBride, attorneys; Mr. McHugh, of counsel and on the brief).

The opinion of the court was delivered by: Parker, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 7, 2003

Plaintiff appeals from a grant of summary judgment dismissing the complaint against Structural Coatings, Inc. (SCI), MFS, Inc. (MFS) and Dana Corporation (Dana) in this wrongful death/product liability complaint based upon asbestos exposure. Plaintiff also appeals from denial of her motion for leave to file a fifth amended complaint. SCI cross-appeals from denial of summary judgment on the ground of successor liability. We affirm.

Plaintiff is the executor of her husband's estate. In a series of amended complaints filed from May 1992 through November 1996, plaintiff alleged that her husband was exposed to asbestos that was manufactured, distributed, imported or used by numerous corporations. On August 22, 1997, plaintiff's motion for leave to file a fifth amended complaint was denied by Judge Rosemary Reavey. The complaint was originally filed in Monmouth County, but venue was ultimately transferred to Middlesex in 1995.

On October 24, 1997, Judge Reavey granted summary judgment in favor of SCI on the punitive damage claims and denied summary judgment on the remaining claims. On SCI's motion for reconsideration on November 21, 1997, Judge Reavey dismissed all of the claims against SCI because plaintiff failed to provide adequate proof that her husband was exposed to SCI's product, SprayDon. On October 24, 1997, Judge Reavey also granted summary judgment in favor of MFS ...


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