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Varo v. Owens-Illinois

May 27, 2008

FRANCISCO VARO VARO AND CARMEN HERRERA LAYNEZ, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
MANUEL ALCEDO MARTIN BEJARANO AND MERCEDES GARCIA DELGADO, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
MANUEL FUENTES BEJARANO, PLAINTIFF-APPELLANT,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
ANTONIO MARQUEZ LAYNEZ AND MARIA CARMEN MERINO SALAS, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
ELEUTERIO PEREZ LAYNEZ AND JOSEFA BERNAL SANTOS, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
FRANCISCO CARABALLO AVALO AND JOSEFA MONTESINOS SAMPALO, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
GREGORIO CABELLO MANCHENO AND NATIVIDAD BERENGUER PISONES, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
THERESA RAMIREZ BOCETTA, EXECUTRIX FOR THE ESTATE OF JOSE RIZO BERNAL, AND THERESA RAMIREZ BOCETTA, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
AVELINO LOPEZ AROCA, PLAINTIFF-APPELLANT,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
JOSE GARCIA BARBA AND MARIA LUISA CASTELLANO LINARES, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
GUILLERMO CONSUEGRA GARCIA AND MANUELA TRAVIESO RODRIGUEZ, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
MARIA GARCIA, ADMINISTRATRIX AD PROSEQUENDUM FOR THE ESTATE OF MANUEL SANTOS LUCERO, AND, MARIA GARCIA, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
JOAQUIN MARQUEZ GARCIA AND AMPARO PONCE IZQUIERDO, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
ANGELA ESQUERDO LUCHURO, EXECUTRIX FOR THE ESTATE OF JOSE MARTIN-NINO BARBA, AND ANGELA ESQUERDO LUCHURO, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
OWENS-ILLINOIS, INC., DEFENDANT-RESPONDENT.
JUAN ANTONIO NEVA BLANCO AND MANUELA CURTIDO MARTIN ARROYO, H/W, PLAINTIFFS-APPELLANTS,
v.
OWENS-ILLINOIS, INC. DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-4763-04, L-7333-04, L-7311-04, L-7334-04, L-7410-04, L-7408-04, L-7409-04, L-7390-04, L-7727-04, L-7728-04, l-7729-04, L-7730-04, L-7731-04, L-7732-04 & L-7733-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 28, 2008

Before Judges Parrillo, Gilroy and Baxter.

At issue in this consolidated appeal is whether plaintiffs' actions should be dismissed on forum non conveniens grounds. Plaintiffs are fifteen lifelong Spanish nationals and residents, each of whom brought suit in New Jersey asserting product liability and breach of warranty claims arising from injuries allegedly suffered by exposure to asbestos while working aboard United States naval warships docked at either the jointly owned U.S.-Spanish military installation in Rota, Spain, or neighboring private shipyards in Cadiz. Defendant, Owens-Illinois, Inc. (O-I), whom plaintiffs claim manufactured and sold the asbestos products in New Jersey, successfully moved for dismissal on the basis that Spain was the more appropriate forum in which to resolve the litigation. We disagree based on the record presented and therefore reverse.

We describe plaintiffs' version of the facts as alleged in their complaints, intimating of course no view as to the accuracy thereof. O-I is currently a Delaware corporation with headquarters in Toledo, Ohio. It is the successor by merger to Owens-Illinois, Inc., an Ohio corporation, which was formerly known as Owens-Illinois Glass Company. O-I began manufacturing and distributing a limited line of asbestos products under the name of Kaylo in 1943, and later Kaylo-20. Manufactured primarily in the form of heat insulating block and pipe covering, both Kaylo and Kaylo-20 were developed, designed, tested and marketed exclusively from defendant's two plants in New Jersey, first in Berlin, then in 1948 in Sayreville. By 1948-1949, Kaylo was being large-scale manufactured out of the Berlin plant while a new line of Kaylo products was in development. In 1955, the Kaylo-20 product line was ready for manufacturing, to be used for power, refining and chemical industries where high-temperature insulation was needed. On April 30, 1958, O-I sold its entire Kaylo thermal insulation business to Owens-Corning Fiberglass Corporation, and has not manufactured asbestos-containing products since.

Plaintiffs are skilled tradesmen who worked alongside other tradespersons common to large military installations, while servicing American naval warships in Spain at various times from 1950 to 1998. In this capacity, they were either employed by private contractors or directly by the U.S. Department of the Navy. They claim that as a result of the routine performance of their workplace maintenance operations duties, they came into contact, directly and indirectly, with asbestos dust and fibers emitted from the Kaylo products onboard these ships, and consequently, suffer from asbestos-related illnesses, including asbestosis. The naval vessels on which they worked were docked at the Rota Naval Base in Rota, Spain and before its construction, across the bay at the port city of Cadiz.

Construction of the Rota Naval Base was completed in 1958 and was a collaborative effort between the United States and Spanish governments. By "Agreement of Defense Cooperation Between the USA and the Kingdom of Spain" (Agreement), dated December 1, 1988, Spain, while retaining sovereignty over its territory and airspace, granted the United States use thereof as well as of operational and support installations such as the Rota Naval Base for military purposes. See Agreement, Article 2, § 2; Article 8; Article 24. The first major U.S. warship to dock at Rota arrived on July 30, 1959, preceded by a U.S. Coast Guard vessel in August 1958. While the Rota Naval Base was under construction, American warships were being repaired, maintained and refurbished at private shipyards in and around the port city of Cadiz, where plaintiffs claim they performed identical maintenance operations as at Rota that led to the same asbestos exposure that occurred later at the base.

In late 2004, plaintiffs filed the instant action against defendant in the Law Division, Camden County, sounding in strict liability and breach of warranty, and alleging personal injury from exposure to asbestos-containing products. After some discovery was conducted, in August 2006, defendant moved for dismissal of the complaints on forum non conveniens grounds, urging that Spain, the situs of the alleged exposure and residence of plaintiffs, was the more appropriate forum.

At the close of oral argument, the motion judge reserved decision, requested supplemental briefing on the jurisdictional issue and commented: "[t]he only thing that bothers me is whether or not there's a forum that will hear these cases, because if there is, I'm sending them back to Spain." In response, both sides submitted conflicting legal opinions on the question of Spain's jurisdiction, with plaintiffs' expert positing that American naval warships docked at the port of a foreign nation remain United States territory. The motion judge, however, opted for the contrary view expressed by defendant's expert and accordingly held, without further analysis or reconciliation of the contrasting views, that Spanish courts have jurisdiction over plaintiffs' causes of action. As such, the judge went on to consider the private- and public-interest factors promulgated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and concluded, once again without elaboration or explanation, that all of the former and most of the latter weighed in favor of ceding jurisdiction to Spain. Consequently, the judge dismissed plaintiffs' complaints with prejudice.

On appeal, plaintiffs maintain the court erred as a matter of law in finding Spain an available, alternative forum and in its balancing of the public- and private-interest factors. We agree and conclude that the determination to dismiss plaintiffs' actions in favor of a foreign jurisdiction was a clearly mistaken exercise of the court's discretion.

The essence of the common law doctrine of forum non conveniens is that a court may dismiss a case when the forum selected by a plaintiff -- despite the existence of jurisdiction and venue -- is so inconvenient that it would be unfair to the defendant to conduct its defense of the claim in that location. Gulf Oil, supra, 330 U.S. at 507, 67 S.Ct. at 842, 91 L.Ed. at 1062. The doctrine affords an equitable remedy, D'Agostino v. Johnson & Johnson, Inc. (D'Agostino I), 225 N.J. Super. 250, 258 (1988), aff'd, 115 N.J. 491 (1989) (D'Agostino II), firmly embedded in our jurisprudence, but not of constitutional origin. Kurzke v. Nissan Motor Corp. in U.S.A., 164 N.J. 159, 165 (2000). Although "the central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient[;]" Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256, 102 S.Ct. 252, 266, 70 L.Ed. 2d 419, 436 (1981), reh'g denied, 455 U.S. 928, 102 S.Ct. 1296, 71 L.Ed. 2d 474 (1982), application of the doctrine does not involve simply a weighing of the relative conveniences of the parties, lest such motions become routine and ordinary. Kurzke, supra, 164 N.J. at 170; Starr v. Berry, 25 N.J. 573, 584 (1958); D'Agostino I, supra, 225 N.J. Super. at 262; Radigan v. Innisbrook Resort & Golf Club, 150 N.J. Super. 427, 431 (App. Div. 1977). As a defensive measure to protect the private interests of litigants, the doctrine should not be invoked offensively to embarrass or destroy a plaintiff's opportunity to be heard, or in situations where the prospect of a lengthy or complex trial offers a strong temptation to decline to entertain the suit. D'Agostino I, supra, 225 N.J. Super. at 261-62. Rather, application of the doctrine must be considered in light of the primary danger against which it guards, namely "'resort to a strategy of forcing the trial at a most inconvenient place' . . . [in order to] 'vex,' 'harass' or 'oppress'" the adversary. Lony v. E.I. DuPont de Nemours & Co., 935 F.2d 604, 615 (3d Cir. 1991) (quoting Gulf Oil, supra, 330 U.S. at 507-08, 67 S.Ct. at 842-43, 91 L.Ed. at 1062).

Like all other equitable remedies, the application of the forum non conveniens doctrine is ordinarily left to the sound discretion of the trial court. Kurzke, supra, 164 N.J. at 165 (citing Civic S. Factors Corp. v. Bonat, 65 N.J. 329, 333 (1974)); see also Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 278 (App. Div. 2007). However, consistent with the purpose underlying the doctrine, a court may exercise its discretion to dismiss a case "only when trial of the action would 'establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to a plaintiff's convenience' or when the 'chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems.'" Lony, supra, 935 F.2d at 608 (alterations ...


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