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Fackelman v. Lac d'Amiante du Quebec

March 3, 2008

DANIEL FACKELMAN AND BARBARA FACKELMAN, H/W, PLAINTIFFS-APPELLANTS,
v.
LAC D'AMIANTE DU QUEBEC, LTEE AND RAPID AMERICAN CORPORATION, DEFENDANTS, AND THE ST. PAUL TRAVELERS COMPANIES, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3352-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: September 19, 2007

Before Judges Cuff, Lihotz and Simonelli.

This appeal concerns whether the workers' compensation insurer which performed industrial hygiene studies for plaintiff's*fn1 employer at plaintiff's place of employment had a duty to educate and warn employees of any danger. We hold that the insurer did not have such duty and affirm.

Plaintiff commenced this action against Lac d'Amiante du Quebec, Ltee (Lac d'Amiante), Rapid American Corporation (Rapid American) and The St. Paul Travelers Companies, Inc. (Aetna).*fn2

Lac d'Amiante and Rapid American mined, manufactured and supplied asbestos products to plaintiff's employer, Owens Corning Fiberglas Corporation (Owens Corning). Aetna performed industrial hygiene studies at the Owens Corning facility in Berlin. Plaintiff was employed by Owens Corning at the Berlin facility, where he was exposed to asbestos, from 1967 to 1968.

In his complaint, plaintiff alleged that Aetna "assumed a duty and contracted to provide [Owens Corning] with information, dust studies, inspections, instructions, supervision, recommendations, assistance, notices, reports, methods, findings, cautions, warnings, designs, devices, equipment, safeguards, guidance, and services to adequately and reasonably provide safe working conditions, and to preserve and protect the life, health and safety" of Owens Corning employees. Plaintiff further alleged that Owens Corning employees depended on Aetna to protect their lives and health, that Aetna knew that Owens Corning was not taking the measures necessary to protect the health of its employees, and that Aetna, through its active and passive negligence, failed to exercise the care and skill required to preserve and protect the health and safety of Owens Corning employees. Plaintiff also asserted that Aetna expressly and impliedly warranted that its undertaking was reasonably accurate, reliable and professionally competent and that Aetna breached its warranties by failing to disclose to Owens Corning and its employees the existence of dangerous conditions at the Berlin facility. Finally, plaintiff alleged that he and other employees at the Berlin facility were third-party beneficiaries of the undertaking between Aetna and Owens Corning and that Aetna's negligence, breach of contract and breach of warranties caused and permitted injury to the third-party beneficiaries.

The facts, viewed in the light most favorable to plaintiff, are as follows. Plaintiff commenced employment at the Berlin facility of Owens Corning in July 1967. He was nineteen years of age. His principal job during the next ten months was a "stripper on the line." Plaintiff explained that he took Kaylo, or asbestos pipe covering, out of a mold and stacked it in a bin. Sometimes the product broke or shattered. Plaintiff gathered the fragments and threw them in a dumpster. The area was dusty. He described the air conditions as "[s]ometimes it was tough to see like a bad, foggy day."

When he commenced his employment, plaintiff was placed on a practice line to determine if he had the dexterity to do the job. His employer gave him no information about asbestos. He was not required to wear a mask or other breathing protection, although "white painting masks" were available for use by employees and some employees wore these masks. Plaintiff also testified that at some time during his employment a co-worker was given a device to wear on his chest by "strangers" to test the air. Some of these strangers examined equipment, some observed how the workers performed their job functions. According to plaintiff, the employees were not informed of the results of any testing. He expected his employer or the company that performed the tests to inform the employees or their union of the test results and "if it was anything dangerous or something [that] would hurt us or whatever."

Plaintiff left his employment with Owens Corning in May 1968. In 2002, his physician advised him that he had asbestosis.

The record reflects that between 1958 and 1972, Aetna performed various air sample surveys, industrial hygiene studies, and special hazard studies at the Berlin plant. The engineering department of the Philadelphia division of Aetna performed inspection and advisory work for Aetna underwriters on new and existing accounts. Aetna "serviced [its] larger insureds in various safety matters, training programs, literature, helping them hold safety meetings, assisting them as best [they] could in their particular safety program." Between 1958 and 1965 Aetna may have been the only entity performing air sampling at the Berlin plant. Following receipt of results of periodic air sampling, representatives from Aetna met with Owens Corning representatives to review the results, to discuss the Owens Corning response and to offer advice. The purpose of the meetings was to prompt Owens Corning to reduce high exposure levels and to contain the dust in the plant.

According to the record, between 1958 and 1972, there were occasions when dust levels at various places or worksites at the Berlin facility exceeded air quality thresholds. At other times, dust levels were at or under air quality thresholds. During this period, air quality thresholds progressively declined from 10,000,000 particles per cubic foot to 5,000,000 particles per cubic foot and eventually to 2,000,000 particles per cubic foot. The record also reveals that Aetna acknowledged and commented ...


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