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Barile v. 3M Co., Inc.

Superior Court of New Jersey, Appellate Division

September 4, 2013

MARY O. BARILE, individually and as Executrix of the Estate of her Husband WALTER J. BARILE, Plaintiff-Respondent/ Cross-Appellant,
v.
3M COMPANY, INC., a/k/a MINNESOTA MINING 7 MANUFACTURING COMPANY, ALFA LAVAL, INC., individually and as successor to, and previously known as Alfa-Laval AB, Alfa-Laval Thermal Co., and DeLaval Separator Company, ASBESTOS CORPORATION LIMITED, individually and as successor to Johnson's Company, AMERICAN OPTICAL CORPORATION, CBS CORPORATION, a Delaware Corporation, f/k/a Viacom Inc., f/k/a Westinghouse Electric Corporation, CERTAINTEED CORPORATION, formerly CertainTeed Products Corp., individually and as successor to Keasbey & Mattison Company, CHICAGO BRIDGE & IRON COMPANY, CLEAVER BROOKS, INC., CRANE PUMPS AND SYSTEMS, INC., individually, and as successor to and d/b/a Crane Valves, E.I. DUPONT DE NEMOURS AND COMPANY, FLUOR DANIEL SERVICES CORPORATION, GENERAL ELECTRIC COMPANY, GOULDS PUMPS, INC., GRINNELL CORPORATION, IMO INDUSTRIES INC., as successor to and formerly known as DeLaval Turbine, Transamerica DeLaval, and IMO DeLaval, ITT INDUSTRIES INC., individually and as successor to Bell & Gossett and Grinnell Corporation, JOHN W. WALLACE & CO., THE M.W. KELLOGG COMPANY, RAPID AMERICAN CORP., individually and as successor to the Celotex Corp., Philip Carey Manufacturing Co., Philip Carey Company, Inc., XPRU Corp., Briggs Manufacturing Company, Panacon Corporation, Smith & Kenzle, Inc., and Quebec Asbestos Corp., Ltd., RESCO HOLDINGS, INC., ROBERT A. KEASBEY COMPANY, SANTA FE BRAUN, INC., SCHIAVONE-BONOMO CORPORATION, SEQUOIA VENTURES, individually and as successor to Bechtel Corp., STATE INSULATION CORP., UNION CARBIDE CORPORATION, Division of the Dow Chemical Company, WESTINGHOUSE ELECTRIC CORP., Defendants, and FOSTER WHEELER, L.L.C., f/k/a Foster Wheeler Corporation, Defendant-Appellant/ Cross-Respondent, and EXXON MOBIL, individually and as successor-in-interest to Mobil Oil Co., and as successor-in-interest to Exxon Corporation, Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 22, 2013

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7862-07.

Christopher J. Keale argued the cause for appellant/cross-respondent Foster Wheeler, L.L.C. (Sedgwick L.L.P., attorneys; Michael A. Tanenbaum, of counsel and on the brief; Mr. Keale, on the brief).

Gonen Haklay argued the cause for respondent/cross-appellant Mary O. Barile (Cohen, Placitella & Roth, P.C., attorneys; Mr. Haklay, William L. Kuzmin and Rayna E. Kessler, on the brief).

Joseph P. LaSala argued the cause for respondent Exxon Mobil (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. LaSala, of counsel; Nancy McDonald, Michelle Hydrusko, and Gabriel Ferstendig, on the brief).

Before Judges Graves, Ashrafi and Espinosa.

PER CURIAM

Following trial in this mesothelioma case, defendant Foster Wheeler, L.L.C., appeals from the jury's verdict awarding $1, 776, 892 in damages to plaintiff. The jury found Foster Wheeler strictly liable for failing to warn workers about the dangers of asbestos when they were repairing a large customized boiler Foster Wheeler had manufactured specifically for defendant Exxon Mobil and installed at Exxon's Bayway refinery. Plaintiff Mary O. Barile, individually and as executrix of the estate of her husband Walter J. Barile, filed a protective cross-appeal from rulings of the trial court dismissing or otherwise limiting her negligence claims against both Foster Wheeler and Exxon and denying her post-trial motion for a judgment notwithstanding the jury's verdict in favor of Exxon.[1]

We affirm in part and reverse in part. We conclude that the statute of repose, N.J.S.A. 2A:14-1.1(a), was applicable to all of plaintiff's claims against Foster Wheeler and barred the jury's verdict awarding damages, and we find no reversible error in the trial court's rulings with respect to Exxon.

I.

A.

The statute of repose bars any cause of action after ten years against a party that designed, planned, or constructed "an improvement to real property." It states in relevant part:

No action, whether in contract, in tort, or otherwise, to recover damages for any deficiency in the design, planning, surveying, supervision or construction 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, surveying, 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. . . .

Here, Foster Wheeler's actions on which plaintiff's claims are based occurred in 1962 and 1963. Plaintiff's complaint was filed forty-four years later in 2007. The trial court applied the statute of repose to dismiss plaintiff's claims against Foster Wheeler for designing and constructing the boiler for the Bayway refinery but not her claim that Foster Wheeler was strictly liable under products liability law for the repair work it did on the boiler just a few months later. The repair work required that asbestos insulation that Foster Wheeler had not manufactured itself be removed from the boiler and then replaced with new asbestos insulation. On Foster Wheeler's appeal, we must decide whether the statute of repose applied to all of plaintiff's claims against Foster Wheeler. Plaintiff argues generally that the statute of repose should not be applied at all to a mesothelioma case such as this.

In plaintiff's cross-appeal, the main issue is whether the trial court erred in dismissing the negligence claims against both defendants under an independent contractor defense. See Muhammad v. N.J. Transit, 176 N.J. 185, 196 (2003); Bahrle v. Exxon Corp., 145 N.J. 144, 157 (1996). Plaintiff also contends that the jury's verdict in favor of Exxon as to a ...


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