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Susan M. Buttitta, Individually, and As Executrix To the Estate of v. Allied-Signal

July 28, 2011

SUSAN M. BUTTITTA, INDIVIDUALLY, AND AS EXECUTRIX TO THE ESTATE OF MARK BUTTITTA, PLAINTIFF-RESPONDENT,
v.
ALLIED-SIGNAL, INC., ALLIED CORPORATION, ALMA PRODUCTS CO.,ASBESTOS FIBER CORP., BORG-WARNER CORP., HONEYWELL INTERNATIONAL, INC., A SUCCESSOR CORPORATION TO ALLIED SIGNAL, INC., AND AS A SUCCESSOR IN INTEREST TO HONEYWELL INTERNATIONAL, INC., BENDIX, LAKE ASBESTOS OF QUEBEC, LTD., NATIONAL GYPSUM CO., RAYMARK INDUSTRIAL DIVISION, UNION CARBIDE CORP., AND UNION INSULATING CO., DEFENDANTS, ANDASBESTOS CORPORATION LTD., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9592-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 25, 2011 - Before Judges Sapp-Peterson and Simonelli.

In this negligence, products liability and wrongful death matter, defendant Asbestos Corporation, Ltd. (ACL) appeals from a judgment entered pursuant to the offer of judgment rule, Rule 4:58, requiring ACL to pay all costs and reasonable litigation expenses and attorneys' fees incurred by plaintiff Susan Buttitta, plus eight percent prejudgment interest from December 26, 2007 to June 2010. ACL contends plaintiff's offer was invalid because it did not settle all claims against all defendants in this multi-defendant, multiple-claim, joint and several liability case. ACL also contends the judgment violates its federal and state due process rights because Rule 4:58 provided no notice of ACL's potential sole liability under the Rule. Alternatively, ACL contends the trial judge erred by holding ACL liable for all costs and attorneys' fees from December 2007 to June 2010 without assessing only those fees that were compelled by ACL's non-acceptance of plaintiff's offer.

We hold that plaintiff's offer of judgment to ACL is valid, and ACL's due process rights were not violated. We also hold that the trial judge correctly found ACL to be liable for, and correctly calculated, all of the costs and reasonable litigation expenses and attorneys' fees incurred by plaintiff beginning ninety days from service of the offer of judgment, plus eight percent prejudgment interest from the date of completion of discovery.

The underlying facts of this matter are set forth in two unpublished opinions rendered in this matter. Buttitta v. Asbestos Corp. (Buttitta I), No. A-6101-04 (App. Div. Aug. 16, 2006); Buttitta v. Allied Signal, Inc. (Buttitta II), Nos. A-5263-07, A-5268-07 (App. Div. Apr. 5, 2010), certif. denied, 203 N.J. 93 (2010), certif. denied, 202 N.J. 344 (2010). We incorporate herein the facts set forth in those opinions.

The facts germane to this appeal are straightforward. Plaintiff filed a complaint against numerous defendants, alleging they were jointly and severally liable for the death of her husband, Mark Buttitta, resulting from mesothelioma caused by his exposure to asbestos while employed at a warehouse of General Motors Corporation (GM). Plaintiff sued various defendants, including ACL, a Canadian asbestos mining company.

Throughout the course of this matter, ACL refused to provide certain discovery, arguing that the Quebec Business Concerns Records Act (QBCRA), R.S.Q. Ch. D-12, subjected it to criminal penalty for removing from Canada the discovery plaintiff sought. The trial judge found the QBCRA to be inapplicable, and entered an order striking ACL's answer without prejudice and limiting ACL's participation at trial to cross-examining witnesses.

ACL filed a motion for leave to appeal, which we granted. We reversed and remanded for consideration of ACL's discovery argument pursuant to the factors set forth in Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 107 S. Ct. 2542, 96L. Ed. 2d 461 (1987). Buttitta I, supra, slip op. at 48-49. On remand, a different judge conducted the proper analysis, reinstated ACL's answer, and ordered it to provide discovery. ACL filed another motion for leave to appeal, which we denied.

Subsequently, the judge entered an order striking ACL's answer with prejudice. Thereafter, on September 27, 2007, plaintiff filed and served an offer of judgment to resolve all claims against ACL for $10,000,000. ACL did not accept the offer or file a counter-offer.

Prior to trial, plaintiff resolved her claims against most of the defendants. A trial occurred in February 2008 as to the remaining defendants -- ACL, Borg-Warner Corporation (Borg- Warner), C.L. Zimmerman Company (Zimmerman), and Honeywell International, Inc. and its predecessor, Bendix (collectively, Honeywell/Bendix). Zimmerman and Honeywell/Bendix settled during the trial, leaving only ACL and Borg-Warner on the verdict sheet. The jury returned a verdict in plaintiff's favor against ACL and Borg-Warner, jointly and severally, for $30,312,204, which clearly exceeded 120% or more of plaintiff's $10,000,000 offer of judgment to ACL.

ACL filed a motion for judgment notwithstanding the verdict or a new trial, which the judge denied. The judge entered final judgment on June 17, 2008. ACL appealed, and we affirmed. Buttitta II, supra, slip op. at 73. Of significance here is our conclusion that the trial judge correctly denied Borg-Warner's motion to include the settling defendants, GM, Honeywell/Bendix and Zimmerman, on the verdict sheet for the purpose of allocating fault because "Borg-Warner failed to present sufficient evidence from which the jury could have allocated its percentage of liability . . . ." Id. at 47-48. We subsequently denied ACL's motion for reconsideration, and our Supreme Court denied certification. Buttitta v. Allied Signal, Inc., 203 N.J. 93 (2010), 202 N.J. 344 (2010).

Prior to the disposition of the appeal, plaintiff filed a motion pursuant to Rule 4:58 for all costs of suit, reasonable litigation expenses and attorneys' fees, plus eight percent prejudgment interest beginning September 27, 2007, the filing date of the offer of judgment. ACL opposed the motion, contending it was premature and lacked sufficient information showing the amount of costs, expenses and fees plaintiff incurred as the result of ACL's non-acceptance of the offer of judgment, and plaintiff did not establish what fees were compelled by ACL's non-acceptance. ACL argued that plaintiff would have incurred much, if not all, of the fees sought regardless of whether ACL accepted plaintiff's offer of judgment because she still had to prepare for trial against multiple other defendants. ACL also contended that plaintiff was not entitled to an award from September 27, 2007; rather, because ACL did not affirmatively communicate a non-acceptance, non-acceptance could not occur until the offer expired on the tenth day prior to trial.

Following oral argument, the judge found the motion was timely filed, plaintiff was entitled to an award, "ACL must accept the consequences associated with the rejection of plaintiff's offer [of judgment]," and ACL could challenge the amount sought, which amount the judge would determine at a later date. Citing Palmer v. Kovacs, 385 N.J. Super. 419 (App. Div.), certif. denied, 188 N.J. 356 (2006), the judge concludedplaintiff was entitled to reasonable attorneys' fees and costs beginning ninety days after plaintiff served the offer of judgment, which is December 26, 2007, plus prejudgment interest calculated from the ...


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