82 N.Y.2d 342, Matter of New York City Asbestos Litigation (Brooklyn Naval Shipyard Cases)

Citation82 N.Y.2d 342, 604 N.Y.S.2d 884
Party NameMatter of New York City Asbestos Litigation (Brooklyn Naval Shipyard Cases)
Case DateNovember 18, 1993
CourtNew York Court of Appeals

Page 342

82 N.Y.2d 342

604 N.Y.S.2d 884

In the Matter of NEW YORK CITY ASBESTOS LITIGATION (BROOKLYN NAVAL SHIPYARD CASES). Marlene DIDNER, Individually and as Executrix of Saul Didner, Deceased, Respondent,

v.

KEENE CORPORATION, Appellant. (And Other Actions.)

New York Court of Appeals

November 18, 1993.

Page 343

[604 N.Y.S.2d 885] McCarter & English (Andrew T. Berry, Richard P. O'Leary and Stephen Marinko of counsel, of New Jersey Bar, admitted pro hac vice), for appellant.

Page 344

Schapiro & Reich, Lindenhurst (Perry S. Reich of counsel), and Sybil Shainwald, New York City, for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

We granted leave in this case together with two other cases Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 188 A.D.2d 214, 593 N.Y.S.2d 43, affd. 82 N.Y.2d 821, 605 N.Y.S.2d 3, 625 N.E.2d 588 [decided herewith]; Pollicina v. Misericordia Hosp. Med. Ctr., 187 AD2d 217, 593 N.Y.S.2d 512, mod. 82 N.Y.2d 332, 604 N.Y.S.2d 879, 624 N.E.2d 974 [decided herewith] primarily to resolve a question which we have not addressed pertaining to General

Page 345

Obligations Law § 15-108(a) as applied in an action with multiple defendants where two or more of the defendants have settled with the plaintiff prior to submission of the case to the jury. 1 This question, not answered by the plain language of the statute, 2 is: Which method for computing the amount of the General Obligations Law § 15-108(a) offset to the jury award should be adopted: (1) the case-by-case method, under which each settling defendant is taken separately and, for that defendant, the amount of the settlement or the amount of the corresponding apportioned share, whichever is higher, is deducted from the verdict; or (2) the aggregate method, in which the settling tortfeasors are viewed collectively, the settlement amounts and the corresponding apportioned shares are totaled, and the offset is allowed for the greater of the two totals.

The particular appeal before us is taken by defendant Keene Corporation (Keene), a nonsettling defendant in a multidefendant tort action arising out of plaintiff's decedent's exposure to asbestos. The appeal turns on the effect to be given under General Obligations Law § 15-108(a) to an agreement of settlement between plaintiff and the Manville Asbestos Disease Compensation Fund (Manville), announced in open court, which was to be effectuated by entering "a consent judgment" after the verdict. The Appellate Division has concluded with a divided court Didner v. Keene Corp., 188 A.D.2d 15, 593 N.Y.S.2d 238 that this agreement did not constitute a settlement bringing General Obligations Law § 15-108(a) into play for the reason that the agreement did not expressly release the

Page 346

tortfeasor. Thus, this holding of the Appellate Division presents a preliminary issue on which defendant Keene must prevail before the question concerning the proper method for calculating the offset can be discussed--i.e., whether the Manville agreement constitutes a settlement under General Obligations Law § 15-108(a); in other words, whether General Obligations Law § 15-108(a) applies at all. On this issue, for reasons explained hereafter in part II, we agree with defendant Keene and the dissent at the Appellate Division id., at 26-30, 593 N.Y.S.2d 238 that the Manville agreement is a settlement triggering General Obligations Law § 15-108(a).

[604 N.Y.S.2d 886] We thus reach the second issue which involves the choice between the case-by-case or the aggregate approach for determining an offset under General Obligations Law § 15-108(a). Defendant Keene contends that the offset representing the Manville agreement should be calculated for that settling defendant separately under the case-by-case method. For reasons stated in part III, we reject defendant Keene's argument and conclude that the aggregate method of computation, favored by the Appellate Division majority see, id., at 23-26, 593 N.Y.S.2d 238, is the correct approach. The order of the Appellate Division should be modified accordingly.

I

Plaintiff commenced this action against 18 defendants to recover damages for wrongful death, pain and suffering and loss of consortium by reason of the death of her husband due to asbestos exposure. The trial was conducted in two stages, with the jury considering damages first and questions of liability, including apportionment of fault, second. On June 27, 1990, the jury returned a damages verdict totaling $5,867,353, later reduced by the trial court to $3,917,353. The liability phase commenced the next day, June 28, 1990.

On July 5, prior to the submission of the case to the jury, plaintiff's counsel announced in open court that settlements had been reached with various defendants, including Manville. The record contains the following colloquy:

"the court: The Plaintiffs in the Didner case, have settled at this time with Owens Corning, Fiberboard--

"the court: We are going to lose Mr. Taber?

"mr. gordon: Fiberboard and Pittsburgh-Corning. Eagle Pitcher [sic], Manville Asbestos Disease Compensation

Page 347

Fund, National Gypsum, U.S. Gypsum, GAF, and Armstrong.

"We are still open against Keene, H.K. Porter and Westinghouse. We are ready to proceed.

"the court: We are ready to proceed with Dr. Suzuki?

"mr. gordon: Yes.

"For the record, we have also resolved our differences with H.K. Porter and Southern" (emphasis added).

When the case was submitted to the jury, Keene and Westinghouse Electric Corporation (Westinghouse) were the only nonsettling defendants. The jury was asked to apportion liability pursuant to General Obligations Law § 15-108(a) among all 18...

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20 practice notes
  • 847 F.Supp. 1086 (S.D.N.Y. 1994), 92 Civ. 6377, In re New York Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 21, 1994
    ...Court by mail a copy of the decision of the New York Court of Appeals in In re New York County Asbestos Litigation, which is reported at 82 N.Y.2d 342, 604 N.Y.S.2d 884, 624 N.E.2d 979 (1993). These motions were considered fully submitted as of November 23, 1993. TABOLT The Flintkote Compan......
  • 986 F.Supp. 761 (S.D.N.Y. 1997), 87 Civ. 8085, In re Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • November 5, 1997
    ...Keene Corp., N.Y.L.J., Jan. 4, 1991 at 22 (N.Y.Sup.Ct. Dec. 17, 1990), aff'd, 188 A.D.2d 15, 593 N.Y.S.2d 238 (1st Dept.1993), modified, 82 N.Y.2d 342, 604 N.Y.S.2d 884, 624 N.E.2d 979 (1993). More recently, however, Justice Freedman has retreated from this practice and applied a reasonable......
  • 92 N.Y.2d 288, 1998-08696, Whalen v. Kawasaki Motors Corp.
    • United States
    • New York New York Court of Appeals
    • October 15, 1998
    ...82 N.Y.2d 821, 605 N.Y.S.2d 3, 625 N.E.2d 588, affg. for reasons stated at 188 A.D.2d 214, 218, 593 N.Y.S.2d 43; Didner v. Keene Corp., 82 N.Y.2d 342, 351, 604 N.Y.S.2d 884, 624 N.E.2d 979; Pollicina v. Misericordia Hosp. Med. Ctr., 82 N.Y.2d 332, 604 N.Y.S.2d 879, 624 N.E.2d 974). III. We ......
  • 9 F.Supp.2d 307 (S.D.N.Y. 1998), 92 Civ. 6377, In re Joint Eastern and Southern Dist. Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 15, 1998
    ...1991, at 22 (N.Y.Sup.Ct. Dec. 17, 1990), aff'd, 188 A.D.2d 15, 593 N.Y.S.2d 238 (1st Dep't 1993) (no discussion of remittitur), modified, 82 N.Y.2d 342, 624 N.E.2d 979, 604 N.Y.S.2d 884 (1993), and In re New York City Asbestos Litigation, 151 Misc.2d 1, 572 N.Y.S.2d 1006 (N.Y.Sup.1991) [her......
  • Request a trial to view additional results
19 cases
  • 847 F.Supp. 1086 (S.D.N.Y. 1994), 92 Civ. 6377, In re New York Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • January 21, 1994
    ...Court by mail a copy of the decision of the New York Court of Appeals in In re New York County Asbestos Litigation, which is reported at 82 N.Y.2d 342, 604 N.Y.S.2d 884, 624 N.E.2d 979 (1993). These motions were considered fully submitted as of November 23, 1993. TABOLT The Flintkote Compan......
  • 986 F.Supp. 761 (S.D.N.Y. 1997), 87 Civ. 8085, In re Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • November 5, 1997
    ...Keene Corp., N.Y.L.J., Jan. 4, 1991 at 22 (N.Y.Sup.Ct. Dec. 17, 1990), aff'd, 188 A.D.2d 15, 593 N.Y.S.2d 238 (1st Dept.1993), modified, 82 N.Y.2d 342, 604 N.Y.S.2d 884, 624 N.E.2d 979 (1993). More recently, however, Justice Freedman has retreated from this practice and applied a reasonable......
  • 92 N.Y.2d 288, 1998-08696, Whalen v. Kawasaki Motors Corp.
    • United States
    • New York New York Court of Appeals
    • October 15, 1998
    ...82 N.Y.2d 821, 605 N.Y.S.2d 3, 625 N.E.2d 588, affg. for reasons stated at 188 A.D.2d 214, 218, 593 N.Y.S.2d 43; Didner v. Keene Corp., 82 N.Y.2d 342, 351, 604 N.Y.S.2d 884, 624 N.E.2d 979; Pollicina v. Misericordia Hosp. Med. Ctr., 82 N.Y.2d 332, 604 N.Y.S.2d 879, 624 N.E.2d 974). III. We ......
  • 9 F.Supp.2d 307 (S.D.N.Y. 1998), 92 Civ. 6377, In re Joint Eastern and Southern Dist. Asbestos Litigation
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • June 15, 1998
    ...1991, at 22 (N.Y.Sup.Ct. Dec. 17, 1990), aff'd, 188 A.D.2d 15, 593 N.Y.S.2d 238 (1st Dep't 1993) (no discussion of remittitur), modified, 82 N.Y.2d 342, 624 N.E.2d 979, 604 N.Y.S.2d 884 (1993), and In re New York City Asbestos Litigation, 151 Misc.2d 1, 572 N.Y.S.2d 1006 (N.Y.Sup.1991) [her......
  • Request a trial to view additional results