White v. Johns-Manville Corp.
| Decision Date | 05 October 1981 |
| Docket Number | JOHNS-MANVILLE,Nos. 80-1116,RAYBESTOS-MANHATTEN,s. 80-1116 |
| Citation | 662 F.2d 243 |
| Parties | John W. WHITE, Ronald M. Cash, Donahue Ellis, Willie A. Gibbons, Thomas J. Hogge, Maurice W. Holloway, Wilon W. Jones, Percy C. Overman, Hugh V. Reynolds, John Lee Roland, Thomas R. Sawyer, Milton L. Stacey, Robert L. Van Dyke, Walter J. White, James T. Long, Homer E. Watson, O. W. Patrick, James T. Oman, Fred R. Walker, Roscoe C. McGuire, Elias James Watkins, Plaintiffs, v.CORPORATION and Johns-Manville Sales Corporation, successor by merger with Johns-Manville Products Corporation; Owens-Corning Fiberglas Corporation, successor by purchase of Kaylo Division of Owens-Illinois Glass Company; Pittsburgh Corning Corporation, a Pennsylvania Corporation; H. K. Porter Thermoid Division, a Delaware Corporation, Appellants, andCORPORATION, a Connecticut Corporation; The Celotex Corporation, successor by merger with Panacon Corporation, which was successor by merger of Briggs Manufacturing Company and Philip Carey Corporation; Unarco Industries, Inc., formerly known as Union Asbestos and Rubber Company; Southern Asbestos Company, a Foreign Corporation; Eagle-Picher Industries Inc., an Ohio Corporation, Defendants and Third Party Plaintiffs, v. NEWPORT NEWS SHIPBUILDING AND DRYDOCK COMPANY, Appellee, and The United States of America, Third Party Defendant. John W. WHITE, Ronald M. Cash, Donahue Ellis, Willie A. Gibbons, Thomas J. Hogge, Maurice W. Holloway, Wilon W. Jones, Percy C. Overman, Hugh V. Reynolds, John Lee Roland, Thomas R. Sawyer, Milton L. Stacey, Robert L. Van Dyke, Walter J. White, James T. Long, Homer E. Watson, O. W. Patrick, James T. Oman, Fred R. Walker, Roscoe C. McGuire, Elias James Watkins, Plaintiffs, v. UNARCO INDUSTRIES, formerly known as Union Asbestos and Rubber Company; Raybestos-Manhatten, Inc., a Connecticut Corporation, Appellants, andCORPORATION and Johns-Manville Sales Corporation, successor by merger with Johns-Manville Products Corporation; Owens-Corning Fiberglas Corporation, successor by purchase of Kaylo Division of Owens-Illinois Glass |
| Court | U.S. Court of Appeals — Fourth Circuit |
C. Michael Montgomery, Norfolk, Va. (Robert M. Hughes, III, Glen A. Huff, Steven G. Schwartz, Seawell, McCoy, Dalton, Hughes, Gore & Timms, Norfolk, Va., on brief), for Johns-Manville Corp. and Johns-Manville Sales Corp.
Gerard E. W. Voyer, Taylor, Walker & Adams, Norfolk, Va., on brief for Unarco Industries, Inc.
William V. Hoyle, Charles A. Smith, Hoyle Corbett, Hubbard, Smith & Payne, Newport News, Va., on brief for Raybestos-Manhatten, Inc.
Jack E. Greer, J. Anderson Stalnaker, Williams, Worrell, Kelly & Greer, Norfolk, Va., on brief for Owens-Corning Fiberglas Corp.
Allan S. Reynolds, Worth D. Banner, White, Reynolds, Smith & Winters, Norfolk, Va., on brief for Pittsburgh Corning Corp.
John Y. Pearson, Jr., Bruce T. Bishop, Willcox, Savage, Lawrence, Dickson & Spindle, Norfolk, Va., on brief for Celotex Corp.
Archibald Wallace, III, Nathan H. Smith, Albert D. Bugg, Jr., Sands, Anderson, Marks & Miller, Richmond, Va., on brief for H. K. Porter Co.
William B. Eley, Kenneth A. Phillips, Eley, Rutherford & Leafe, Norfolk, Va., on brief for Eagle-Picher Industries, Inc.
Stephen B. Clarkson, Washington, D. C. (Sullivan & Beauregard, J. Mitchell Brown, D. Whitney Thornton, II, Richard H. Saltsman, Washington, D. C., Antje E. Huck, Shannon T. Mason, Mason, Mason, Gibson, Cowardin & Spencer, Newport News, Va., on brief), for appellee.
Before WIDENER, HALL and PHILLIPS, Circuit Judges.
Johns-Manville and seven other manufacturers (manufacturers), sued by five persons who claimed that they had contracted asbestosis by working with products of whose hazards they had not been warned by these manufacturers, impleaded as third-party defendant the injured persons' employer, Newport News Shipbuilding & Drydock Company (Newport News) on a third-party claim for indemnification in respect of any liability established against the manufacturers. The district court, 482 F.Supp. 1060, dismissed the manufacturers' indemnity claims, rejecting as a matter of law the several legal theories advanced in their support. We affirm.
Newport News is a shipbuilding and repair facility located in Newport News, Virginia, where some of the largest and most sophisticated ships in the United States Navy are constructed and repaired. In the course of construction or repair of ships its employees install or replace thermal insulation materials containing asbestos. These insulation materials produced and sold by the manufacturers and used by Newport News on pipes, steam systems and boilers to protect the crew from the extreme heat produced by the ship's propulsion systems, take the form of rope, cloth, sheets, blocks, sections or cement. In some instances it is necessary to cut, saw, hammer or mix the material in order to install it for insulation purposes. In the event that the insulation must be removed for replacement or for the repair of other components, it is removed by ripping it out, or by some other method. In both application and "ripout" a fine dust containing microscopic particles of asbestos is frequently created. Inhalation of asbestos dust over a long period of time allegedly causes asbestosis and other lung ailments.
The plaintiffs in the main action here, all employees of Newport News, claimed that they developed asbestosis as a result of the manufacturers' failure to warn them of the hazards associated with the installation of asbestos. As a result of their asbestosis a disabling condition resulting in part from the build-up of scar tissue in the lungs these employees filed workmen's compensation claims with Newport News under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA). 33 U.S.C. § 901 et seq. The claims of all were upheld and each employee received and presumably may still be receiving compensation payments pursuant to the Act.
When these employees then sued the manufacturers as third-party tortfeasors under § 33 of the LHWCA, 33 U.S.C. § 933, the manufacturers filed against Newport News the third-party claims for indemnity here in issue. As pleaded in an amended third-party complaint, their claims were based on two contractual theories that Newport News as a sophisticated industrial purchaser and user of asbestos impliedly warranted to the manufacturers (in its purchase contracts) that it would use due care in the handling and use of the asbestos products, and that the manufacturers were third party beneficiaries of the employment contracts between Newport News and its employees (with an implied warranty to provide a safe work place); and on a non-contractual theory that any negligence of the manufacturers was passive and secondary and that the negligence of Newport News in not warning its employees was active and primary.
Prior to trial, Newport News filed a motion to dismiss or for summary judgment in respect of the manufacturers' amended claims for indemnity, essentially contending that as a matter of law they were unsupportable on any of the legal theories advanced. The trial judge withheld consideration of the motion prior to trial but granted it at the conclusion of the plaintiffs' evidence on the main claim. The court rejected both theories of contractual indemnity, applying Virginia law in holding that there was no right to indemnity arising either from an implied warranty by Newport News to use due care in the handling and use of the product, or to provide a safe place to work as to which the manufacturers were third party beneficiaries of the employment contracts. The court also rejected the noncontractual indemnity theory, holding that the exclusivity provision of the LHWCA, 33 U.S.C. § 905(a), bars any noncontractual indemnity from the employer to a third party.
On appeal the manufacturers challenge the district court's rejection of their implied warranty theory and their noncontractual theory of indemnity, but do not challenge rejection of their third party...
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